Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/26

 frequency is a “misuse” of the product of which McDonalds is aware. Again, such allegation was not in the Complaint, and, in any case, plaintiffs fail to allege even in their papers that what is at issue is a misuse “in the sense that it was outside the scope of the apparent purpose for which the [products] were manufactured.” Trivino v. Jamesway Corp., 148 A.D.2d 851, 852, 853, 539 N.Y.S.2d 123 (3rd Dep’t 1989). McDonalds’ products were manufactured for the purpose of being eaten, and the injuries complained purportedly resulted from the eating of those products. Plaintiffs cite no case law to support the contention that over-consumption of a food product may be considered a misuse. If they amend their complaint to include an allegation based on misuse, they had better be prepared to do so.

A better argument based on over-consumption would involve a claim that McDonalds’ products are unreasonably dangerous for their intended use. The intended use of McDonalds’ food is to be eaten, at some frequency that presents a question of fact. If plaintiffs can allege that McDonalds products’ intended use is to be eaten for every meal of every day, and that McDonalds is or should be aware that eating McDonalds’ products for every meal of every day is unreasonably dangerous, they may be able to state a claim.


 * iv. The NLEA

Plaintiffs finally attempt to rely on the NLEA, arguing that any finding that McDonalds does not have to label its foods would mean that the NLEA is not worth the paper it is written upon. Plaintiffs’ bizarre argument confuses the instant case—a common law negligence and state statutory cause of action—with any enforcement proceedings by the federal government to ensure that those covered by the NLEA (from which McDonalds and other restaurants are exempt, as discussed above) have the nutritional labeling required by the act. Any determination in this case has nothing to do with whether Haagen-Daaz must include a label as to the nutritional contents of a pint of ice cream. Plaintiffs might just as well argue that this case will affect the labeling of tea in China.

Because Count III has failed to state a claim, it is dismissed.


 * 2. Proximate Cause

McDonalds also argues that Count III should be dismissed because the plaintiffs may not as a matter of law allege that the unhealthy attributes of McDonalds’ products were the proximate cause of their obesity and other health problems.

In order to show proximate cause, a plaintiff must establish that the defendant’s conduct was a substantial cause in