Just Plain Nuts

Perhaps you have seen the movie.  You know, the one where someone decides to eat only food served over the counter at McDonald’s for a period of time, with a requirement that every item on the McDonald’s menu be tried at least once.  The result was astonishing and you may well remember the shock you felt when you saw what happened.  Eighteen pounds lost and a drop in cholesterol level of 40 points, as well as reports of feeling “excellent” and “energized” as a result. 

What’s that?  That’s not how you remember the movie turning out? 

Oh.  I know.  You’re thinking of that other movie. 

When Morgan Spurlock released his film Super Size Me in 2004, it followed less than two years after Surgeon General David Satcher issued a warning that obesity was a major threat to life in the United States and called for a “national attack” on obesity.  Spurlock’s film recounted an experiment in which he decided to eat only food served by McDonald’s for a period of thirty days.  The results shown in the film were dramatic.  Spurlock went from a healthy weight of 184 pounds for his 6’2″ frame to a heavy 210 pounds in the thirty days.  His total cholesterol increased from a healthy 168 to 230, and he experienced mood swings, lethargy, depression, and sexual dysfunction. 

The film was nominated for an Academy Award for Documentary feature and as a result was widely seen, grossing some $20 million.  But there was also considerable criticism of the film that was less widely publicized.  Critics contend that the exercise was unfair because of the quantity of McDonald’s food consumed by Spurlock.  It is estimated that his average consumption during the thirty-day period was about 5000 calories.  In addition, he limited his physical activity during the period.  He explained that he was attempting to imitate the average diet for a regular McDonald’s eater.  But neither he nor anyone else ever identified a person who regularly consumes that much food from McDonald’s. 

Much of the criticism directed at Super Size Me has appeared in other, less-well-known films.  The one referred to at the beginning of this post is Me and Mickey D, which recounts the experience of Soso Whaley, who ate only food from McDonald’s for a period of sixty days — twice as long as Spurlock.  By limiting her total caloric intake to somewhere between 1800 and 3000 calories per day and by continuing with an “occasional” exercise regimen, she lost significant weight and reduced her total cholesterol substantially. 

The point made by Whaley in her film is that what we ingest as individuals is a matter of personal responsibility and that it is too easy to point the finger at producers of certain types of food for the consequences when we choose to eat them.  Similar points have been made in other films like Portion Size Me by James Painter, which tracked two individuals who ate only fast food for a month but at consumption levels appropriate for their body types.  The prevailing view among nutritionists reflects the conclusions of nutrition science — namely that most fast food is too high in salt, sugar, and saturated fat for it to be a major part of a healthy diet but that it is not unduly harmful to include such food occasionally. 

Although they have received considerable notoriety, there have, in fact, been relatively few cases brought against fast-food companies seeking compensation for obesity.  The most publicized is certainly Pelman v. McDonald’s Corp., which has persisted in litigation for years since it was first filed on August 22, 2002, with the plaintiffs asserting that consumption of McDonald’s products caused them to become overweight and to develop diabetes, coronary heart disease, high blood pressure, and elevated cholesterol.  While the complaint filed in 2002 asserted a full palette of legal theories for liability, hoping that at least one of them would stick and result in a legally actionable wrong, the only theories that remain viable are those based on the Consumer Protection Act of New York.  The plaintiffs assert that McDonald’s engaged in a number of deceptive practices that misled the plaintiffs into thinking its foods could form part of a healthy and nutritionally beneficial diet.  The history of the case is perhaps best summarized in the most recent ruling denying class certification, which can be read here.  

To me, it strains credulity to think anyone could really believe that McDonald’s products are particularly healthy, and to be so naive as to be deceived by the kinds of assertions that McDonald’s has admittedly made to present its products in the best light possible.  “Puffery” — the exaggeration about products made by salesmen — is as old as the concept of sales itself and is not actionable; we are expected to have some basic understanding of the give and take that occurs in sales.  Indeed, the phrase caveat emptor has been used for centuries in British and American jurisprudence. 

Last week, though, a new case was filed involving the Nutella® hazelnut spread.  The allegations are essentially familiar.  The case is filed as a class action with a class representative who asserts that she was searching for healthy foods to serve her family for breakfast, and relied on advertisements for Nutella® in making her selection.  Nutella®, of course, is not a particularly nutritious food, and people can decide for themselves whether having a small amount of it with breakfast is consistent with how they choose to structure their own diets.  But the class representative was apparently “shocked to learn that Nutella® was in fact not a ‘healthy’ ‘nutritious’ food but instead was the next best thing to a candy bar” after friends told her what it contained.  The lawsuit attacks such things as images of mother feeding the spread to “happy, healthy children” and words suggesting that Nutella® can be part of a “tasty yet balanced breakfast” when eaten with whole wheat bread, orange juice, and a glass of skim milk.  A copy of the complaint can be read here 

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.