Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/22

 This rule makes sense in light of the policy issues discussed at the outset of this opinion. If a person knows or should know that eating copious orders of super-sized McDonalds’McDonalds [sic] products is unhealthy and may results in weight gain, and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonalds. (Except, perhaps, parents of small children who desire McDonalds’ food, toy promotions or playgrounds and demand their parents’ accompaniment. ) Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu.

As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. It is only when that free choice becomes but a chimera—for instance, by the masking of information necessary to make the choice, such as the knowledge that eating McDonalds with a certain frequency would irrefragably cause harm—that manufacturers should be held accountable. Plaintiffs have failed to allege in the Complaint that their decisions to eat at McDonalds several times a week were anything but a choice freely made and which now may not be pinned on McDonalds.


 * b. Allegations Outside the Complaint

In an attempt to save their common law causes of action, plaintiffs raise four arguments that are not alleged in the Complaint to show that McDonalds has a duty toward plaintiffs: (1) McDonalds’ products have been processed to the point where they have become completely different and more dangerous than the run-of-the-mill products they resemble and than a reasonable consumer would expect; (2) plaintiffs have an allergic sensitivity to McDonalds’ products; (3) McDonalds should know that consumers would misuse products (presumably by eating in larger quantities or at greater frequencies than is healthy); and (4) policy arguments based upon the Nutrition Labeling and Education Act. While the Court may only consider allegations in the Complaint for the purposes of this motion, Kramer, 937 F.2d at 773, these arguments are important in determining whether the plaintiffs should have the right to amend their complaint, as they point to potentially viable claims, and thus will briefly be addressed.