Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/23

 :i. Plaintiffs’ Claim that McDonalds’ Products Are More Dangerous Than the Average Hamburger, Fries and Shake

For the first time in their opposition papers, the plaintiffs attempt to show that over-consumption of McDonalds is different in kind from, for instance, over-consumption of alcoholic beverages or butter because the processing of McDonalds’ food has created an entirely different—and more dangerous—food than one would expect from a hamburger, chicken finger or french fry cooked at home or at any restaurant other that McDonalds. They thus argue that McDonalds’ food is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) Tortsof Torts [sic] § 402A, cmt. i. If true, consumers who eat at McDonalds have not been given a free choice, and thus liability may attach.

The argument is akin to one that might be used in a products liability case regarding genetically engineered food, Genetic engineering is the process by which scientists make modifications of the deoxyribonucleic acid (DNA) of an organism by uniting it with plant or animal genes with particular traits. Heather N. Ellison, Genetically Modified Organisms: Does the Current Regulatory System Compromise Consumer Health?, 10 Penn. St. Envtl. L.Rev. 345, 346 (Summer 2002). Recombinant DNA (rDNA) techniques permit a scientist to identify and copy a specific gene and introduce the gene copies into recipient organisms, such as a food crop. Id.; see also Lara Beth Winn, Special Labeling Requirements for Genetically Engineered Food: How Sound Are the Analytical Frameworks Used by FDA and Food Producers?, 54 Food & Drug L.J. 667, 668 (1999). This is done to introduce attributes of the transferor organism into the transferee organism. Id. Genetic engineering has resulted, for example, in a tomato that delays softening, an insect-protected potato and a virus-resistant squash. Jeffrey K. Francer, Frankenstein Foods or Flavor Savers?: Regulating Agricultural Biotechnology in the United States and European Union, 7 Va. J. Soc. Pol’y & L. 257, 262 (Winter 2000). In the year 2000, genetically modified seeds supplied approximately 38 percent of the United States corn crop, 57 percent of the soybean crop and 70 percent of the canola crop. Kelly A. Leggio, Limitations on the Consumer’s Right to Know: Settling the Debate Over Labeling of Genetically Modified Foods in the United States, 38 San Diego L.Rev. 893, 905 (Summer 2001). Although genetic engineering thus far has apparently only been beneficial, there are concerns that genetically modified foods could have far-reaching health effects that have not been accounted for, such as causing allergic reactions and creating antibiotic resistance in consumers. Francer, supra, at 292–294; Leggio, supra, at 903. should any injuries result from the excessive consumption thereof. The genetically modified soybean, potato and ear of corn look exactly like the organically grown soybean, spud and corn. Yet those plants have been substantively, if subtly, modified into something else. Any dangers from eating a genetically modified plant are latent—and thus not commonly well known—in the absence of a label revealing that the object that looks like a soybean is actually a soybean carrying a brazil nut protein.