Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/19

 :b. Count II

Count II, which focuses on representations targeting children, fails for the same reasons discussed above. The Complaint does not identify a single specific advertisement, promotion or statement directed at infant consumers, and Count II must be dismissed in the absence of such specificity.

As with the first subset of Count I, the plaintiffs have attempted to point out potential specific acts in their opposition papers. They focus on two specific promotions geared toward minors: (1) a plastic beef steak figure named “Slugger,” accompanied by a nutritional pamphlet encouraging children to eat two servings a day in the meat group to “make it easier to do things like climb higher and ride your bike farther,” (Pls.’ Mem. at 48–49 n. 53) and (2) promotions of the “Mighty Kids Meal,” a souped-up Happy Meal, that equate eating the larger-portioned meal with being more grown-up. With regard to the latter, plaintiffs still fail to identify specific exhortations or promises associated with the Mightier Kids Meals, and such bare allegations would also be dismissed for lack of specificity were they included in an amended complaint. In any case, if plaintiffs are only concerned about the appellation “Mightier Kids Meal,” such name is seemingly mere puffery, rather than any claim that children who eat a “Mighty Kids Meal” will become mightier. The former is sufficiently specific, were it included in the Complaint, to survive a motion to dismiss for failure to state a claim with sufficient specificity. Of course, plaintiffs would still have to set forth grounds to establish that the promotion was deceptive and that they suffered some injury as a result of that particular promotion.

The plaintiffs also raise for the first time in their opposition papers an argument that McDonalds has acted duplicitously in claiming that it is committed to providing nutritional information to its customers. This argument also fails for lack of specificity; the plaintiffs do not cite to a particular recent occasion where McDonalds has stated such commitment. Even if this allegation were to be included in the Complaint, its deceptive nature is unclear. Plaintiffs admit that McDonalds has made its nutritional information available online and do not contest that such information on all its products and at all points of purchase, plaintiffs do not state a claim.


 * III. Counts III, IV and V: Negligence Claims

The plaintiffs’ common law claims against McDonalds sound in negligence, alleging that McDonalds was negligent in manufacturing and selling its products and negligent in failing to warn consumers of the potential hazards of eating its products. McDonalds argues that each of these claims failfails [sic] as a matter of law because (1) the attributes about which plaintiffs complain were so well-known that McDonalds had not duty either to eliminate