Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/6

 regulation, all alcoholic beverages must warn pregnant women against their use. 27 U.S.C. § 215 (forbidding sale of alcohol unless it bears the following statement: “GOVERNMENT WARNING: (1) According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects….”); 27 C.F.R. § 16.21. Congress has gone further and made the possession and consumption of certain products criminal because of their presumed effect on the health of consumers. Other products have created health hazards and resulted in extensive and expensive class action litigation. E.g., Amchem Products v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) affirming denial of certification of class of potentially millions who had suffered injuries as a result of exposure to asbestos); In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liability Litig., 282 F.3d 220, 225 (3d Cir.2002) (class action of six million who took diet drugs (Pondimin and Redux) that were later linked to valvular heart disease); In re Breast Implant Cases, 942 f.Supp. 958, 959–60 (S.D.N.Y.1996) (discussing possibility of transfer of thousands of cases alleging injuries from silicone breast implants). Public health is one, if not the, critical issue in society.

This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast food fare unless consumers are unaware of the dangers of eating such food. As discussed, infra, this guiding principle comports with the law of products liability under New York law. As Sir Francis Bacon noted, “Nam et ipsa scientia potestas est,” or knowledge is power. Following from this aphorism, one important principle in assigning legal responsibility is the common knowledge of consumers. If consumers know (or reasonably should know) the potential ill health effects