Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/18

 2. The advertisement touting the “real” milk in McDonald’s shakes says that they contain “Wholesome milk, natural sweeteners, a fluid ounce of flavoring, and stabilizers for consistency. And that’s all.” In fact, that’s not really all. McDonald’s own ingredient booklet shows that a typical shake, such as vanilla or strawberry, actually contains artificial flavor and sodium benzoate and sodium hexametaphosphate, two chemical preservatives. This advertisement tells only part of the story.

3. The cholesterol advertisement emphasizes the relatively low (29 milligrams) cholesterol content of the regular hamburger, but does not even mention the saturated fat content, a fact much more relevant to those with cause for concern about heart disease. Abrams Letter, at 1–2.


 * ii. Deceptive Omissions

The second subset of Claim I focuses on McDonalds’ failure to label its foods with their nutritional content. Unlike above, the plaintiffs clearly have outlined the allegedly deceptive practice: the fact that McDonalds failed to post nutritional labeling on the products and at points of purchase. However, because this is a purportedly deceptive act based on an omission, it is not sufficient for the plaintiffs to point to the omission alone. They must also show why the omission was deceptive—a duty they have shunned.

The New York Court of Appeals has addressed what § 349 requires in a situation involving an allegedly deceptive omission. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25–26, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (1995) (Kaye, C.J.) involved a claim that defendant bank acted deceptively in not informing the plaintiff that for-profit entities would not receive interest on accounts in excessive of $100,000. The Court reasoned that in a case involving omissions, “the statute surely does not require businesses to ascertain consumers’ individual needs and guarantee that each consumer has all relevant information specific to its situation.” Id. It provided an exception, however, “where the business alone possesses material information that is relevant to the consumer and fails to provide this information.” Id. It was thus held that the plaintiffs had stated a cause of action, but that liability would turn on whether the plaintiffs possessed, or could reasonably have obtained, the information regarding interest on for-profit entities’ accounts in excess of $100,000. Id. at 27, 623 N.Y.S.2d 529, 647 N.E.2d 741; see also ''Super Glue v. Avis Rent A Car Sys. Inc.'', 159 A.D.2d 68, 71, 557 N.Y.S.2d 959, 961 (2d Dep’t 1990) (rejecting claim for deceptive practices based on Avis’s failure to disseminate information that its Collision Damage Waiver insurance duplicated the plaintiffs’ own automobile insurance because Avis had no duty to inform where the customer with CDW coverage in place was in a far better position to ascertain the relevant conditions and exclusions relating to his or her coverage than Avis).

The plaintiffs fail to allege that the information with regard to the nutritional content of McDonalds’ products was solely within McDonalds’ possession or that a consumer could not reasonably obtain such information. It cannot be assumed that the nutritional content of McDonalds’ products and their usage was solely within the possession of McDonalds.