Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/31

 obesity and related health problems. As a result, Count IV must be dismissed.


 * IV. Count V: Sale of Addictive Products

The exact basis of Count V is unclear. It appears to be a products liability claim, i.e., McDonalds’ products are inherently dangerous in that they are addictive. The claim may also be read to allege that McDonalds failed to warn its customers that its products were addictive.

This claim, unlike the one above based on unhealthy attributes, does not involve a danger that is so open and obvious, or so commonly well-known, that McDonalds’ customers would be expected to know about it. In fact, such a hypothesis is even now the subject of current investigations. See Sarah Avery, “Is Big Fat the Next Big Tobacco?” Raleigh News & Observer, at A25, 2002 WL 11733461 (Aug. 18, 2002) (“[R]esearchers are investigating whether large amounts of fat in combination with sugar can trigger a craving similar to addiction. Such a finding would go far in explaining why fast-food sales have climbed to more than $100 billion a year … despite years of warnings to limit fats.”). Therefore, it does not run into the same difficulties discussed above with regard to clarifying that the unhealthy attributes are above and beyond what is normally known about fast food.

While it is necessary to accept as true the allegation in the Complaint that McDonalds’ products are addictive for the purposes of this motion, such allegation standing alone is, nonetheless, insufficient as overly vague. The Complaint does not specify whether it is the combination of fats and sugars in McDonalds products, id., that is addictive, or whether there is some other additive, that works in the same manner as nicotine in cigarettes, to induce addiction. Further, there is no allegation as to whether McDonalds purposefully manufactured products that have these addictive qualities. In addition, the Complaint fails to specify whether a person can become addicted to McDonalds’ products after eating there one time or whether it requires a steady diet of McDonalds in order to result in addiction. There is also no allegation as to whether plaintiffs, as infants, are more susceptible to the addiction that adults.

While some of these questions necessarily may not be answered until discovery (should this claim be replead and survive a motion to dismiss), and likely then only with the aid of expert witnesses, to allow a complaint to survive merely because it alleges product liability on the basis of addiction would be to allow any complaint that alleges product liability based on the addictive nature of the products to survive dismissal, even where such addiction is likely never to be proven. As a result, a complaint must contain some specificity in order to survive a motion to dismiss.

A claim that a product causes addiction and that reasonable consumers are unaware of that danger must at the very least (1) allege that the plaintiffs are addicted, with allegations revealing ways in which their addiction may be observed, and (2) specify the basis of the plaintiffs’ belief that they and others became addicted to the product. Further allegations addressing questions raised above would further strengthen the claim. In the absence of any such specific allegations, Count V must be dismissed.

In any case, as discussed above, the Complaint fails to allege sufficiently that the addictive nature of McDonalds’ food