Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/17

 that doing so is part of a well-balanced diet, and the plaintiffs fail to cite any advertisement where McDonalds asserts that its products may be eaten for every meal of every day without any ill consequences. Merely encouraging consumers to eat its products “everyday” is mere puffery, at most, in the absence of a claim that to do so will result in a specific effect on health. As a result, the claims likely would not be actionable if alleged. See ''Cytyc Corp. v. Neuromedical Sys. Inc., 12 F.Supp.2d 296, 301 (S.D.N.Y.1998) (“the sort of subjective claims of product quality at issue here are nonactionable”); Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir.1995) (finding claim of “thorough” research to be “mere puffery” and not actionable as false advertising under § 43(a) of Lanham Act); Chevy’s Int’l Inc. v. Sal De Enters., Inc.'', 697 F.Supp. 110, 112 (E.D.N.Y.1988) (“that characterization, even if factually incorrect, was standard industry puffing that does not rise to the level of consumer deception”).

On December 11, 2002, the Court accepted from plaintiffs a number of documents concerning actions taken against McDonalds’ advertising practices in the late 1980’s1980s [sic] by the state attorneys general from several states, including New York State. While any claim based on the advertisements at issue would be time barred, Morelli v. Weider Nutrition Group, Inc., 275 A.D.2d 607, 608, 712 N.Y.S.2d 551 (1st Dep’t 2000) (three-year limitations period for deceptive practices actions), a review of those advertisements and the state attorney generals’ analysis of them may assist plaintiffs in shaping a claim under the Consumer Protection Act. For instance, by letter dated April 24, 1987 (the “Abrams Letter”), Robert Abrams, the then-Attorney General of the State of New York, addressed several specific allegedly deceptive claims in McDonalds advertisements:

1. The advertisement discussing salt (sodium) content in foods says, “Our sodium is down across the menu.” (emphasis added) This is not true. That same advertisement lists four products (regular fries, regular cheeseburger, 6-piece McNuggets, and vanilla milkshake), none of which have had their sodium content lowered in the past year.