Friday, December 31, 2010

McDonalds Sued Over Toys in Happy Meals; Attempts to Translate Deceptive Tobacco Marketing Lawsuits to Fast Food Companies are Not Compelling

A lawsuit filed earlier this month in a San Francisco state court seeks to force McDonalds to discontinue the inclusion of toys in its Happy Meals, arguing that the marketing of toys to promote these meals represents unlawful, deceptive marketing and undermines parental autonomy.

According to a Bloomberg article: "McDonald’s Corp., the world’s biggest restaurant chain, baits, exploits and ultimately harms children by offering toys with its “Happy Meals,” a Washington-based consumer advocacy group claimed in a lawsuit. The Center for Science in the Public Interest, in a complaint that its litigation director Stephen Gardner said was filed today at a state courthouse in San Francisco, accuses the company of deceptive marketing and business practices. ...“I don’t think it’s right to entice children into wanting Happy Meals with the promise of a great toy,” plaintiff Monet Parham said today in a telephone interview. The case was filed by her on behalf of her 6-year-old daughter, Maya. ... Boxed Happy Meals sold by the Oak Brook, Illinois-based restaurant chain typically consist of hamburgers, cheeseburgers or fried chicken, plus French fries or apple slices, a beverage and a toy. “By advertising that Happy Meals include toys, McDonald’s has helped create and continues to exacerbate a super-sized health crisis in California,” the nonprofit group said in its complaint." ...

"The center seeks class-action, or group, status on behalf of all of the state’s children under 8 years of age who have seen marketing for the company’s packaged children’s meals since December 2006. It also seeks an order barring the company from continuing to promote meals featuring toys on television, billboards and in its restaurants. ... “McDonald’s is engaged in a highly sophisticated scheme to use the bait of toys to exploit children’s developmental immaturity and subvert parental authority,” the organization alleged in its complaint."

The Rest of the Story

This is a bit too much. While I agree that fast food companies are marketing products in a way that is contributing to the nation's obesity epidemic, it is not unlawful marketing unless it is fraudulently deceptive. We can't just sue every company that markets products that contribute to public health problems.

The plaintiff stated: "I don’t think it’s right to entice children into wanting Happy Meals with the promise of a great toy." It would certainly be fraudulent to entice children into wanting Happy Meals with the promise of a great toy if McDonalds didn't provide such a toy. Yes, that would be deceptive marketing. But so far as I know, when you buy a Happy Meal, you do indeed receive said toy. So there is no deceptive practice here. You get exactly what was advertised.

The lawsuit argues that "by advertising that Happy Meals include toys, McDonald’s has helped create and continues to exacerbate a super-sized health crisis in California." But if that is grounds for a lawsuit, then every company in the nation that markets unhealthy products could be sued. Smith & Wesson is marketing products that literally kill thousands of Americans each year and have contributed to rampant violence in many cities. Does that make it unlawful for them to sell and market guns? Soda is contributing to the obesity crisis as well. Should we sue Pepsi and Coke for marketing a product that contributes to a national health crisis?

The lawsuit also argues that the marketing of toys with Happy Meals subverts parental authority. Exactly how? Unless the child has his own money, access to a car, a fake license, and can drive by himself, it seems to me that the parent has complete control over where the child eats and what food he eats once at the restaurant. No child can force a parent to buy a Happy Meal for them against the parent's will (although I've seen some children come fairly close).

Unfortunately, I think a lawsuit like this has the potential to undermine the use of litigation where it is really justified - such as in holding tobacco companies accountable for what truly were deceptive marketing practices. The attempt to translate tobacco industry litigation over to the fast food industry is fraught with problems because the situations are very different. Marketing of tobacco to children is illegal because the legal age of sale for cigarettes is 18. But there is no law prohibiting the sale of hamburgers or fried chicken to children. It may be unhealthy, but it is certainly not illegal.

In several recent Engle progeny lawsuits, juries have found that smokers were responsible for their decisions to smoke. How can we possibly hold that if a person is responsible for the decision to smoke, when he began smoking as a child and the product is addictive, that same person is not responsible for the decision to take his child to McDonalds? Is there no role for personal responsibility?

As readers know, I am quite open to the idea that there is a limitation on personal responsibility in the light of deceptive marketing practices that influence children, especially when a product is highly addictive and users who begin as minors may not be able to quit. But the marketing of toys with Happy Meals is simply not analogous to the marketing of cigarettes to minors.

I should also make it clear that I support the public health approach of framing issues such as obesity in terms of corporate responsibility. Interventions to educate the public about the role of fast food corporations in contributing to the obesity crisis are entirely appropriate. But this lawsuit is frivolous because it doesn't have any legal leg to stand on. And it could undermine legitimate attempts to hold companies responsible for damages that they are causing.

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