Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/21

 merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but had butter, contaminated with poisonous fish oil, is unreasonably dangerous. Restatement (2d) of Torts, § 402A, cmt. i.

When asked at oral argument to distinguish this case from those cases involving injuries purportedly caused by asbestos exposure, counsel for the defendants stated that in this case, the dangers complained of have been well-known for some time, while the dangers of asbestos did not becamebecome [sic] apparent until years after exposure. The Restatement provision cited above confirms this analysis, recognizing that the dangers of over-consumption of items such as alcoholic beverages, or typically high-in-fat foods such as butter, are well-known. Thus any liability based on over-consumption is doomed if the consequences of such over-consumption are common knowledge.

It is worth noting, however, that the Restatement provision cited above included tobacco as an example of products such as whiskey and butter, the unhealthy over-consumption of which could not lead to liability. As the successful tobacco class action litigation and settlements have shown, however, the fact that excessive smoking was known to lead to health problems did not vitiate liability when, for instance, tobacco companies had intentionally altered the nicotine levels of cigarettes to induce addiction. E.g., Burton v. R.J. Reynolds Tobacco Co., 205 F.Supp.2d 1253, 1254–55 (D.Kan.2002) (noting jury verdict in favor of plaintiff’s claims on failure to warn, negligent testing and research and fraudulent concealment based on assertions that defendant cigarette manufacturer caused his peripheral vascular disease and addiction).

Thus, in order to state a claim, the Complaint must allege either that the attributes of McDonalds products are so extraordinarily unhealthy that they are outside the reasonable contemplation of the consuming public or that the products are so extraordinarily unhealthy as to be dangerous in their intended use. The Complaint—which merely alleges that the foods contain high levels of cholesterol, fat, salt and sugar, and that the foods are therefore unhealthy—fails to reach this bar. It is well-known that fast food in general, and McDonalds’ products in particular, contain high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for one.