Super Size Me is the Morgan Spurlock documentary that chronicled Spurlock’s health as he as he ate nothing but McDonald’s food at least three times a day for a month. Although certainly not a balanced treatment of the fast food industry, Super Size Me is quite clever and certainly worth watching. Last week, the film was nominated for an Academy Award in the best Documentary Feature category.
One of the criticisms of Super Size Me was that it was a transparent attempt to promote frivolous lawsuits against the fast food industry, although the onslaught of such litigation has not occurred. Nevertheless, such lawsuits received a glimmer of light yesterday from the Second Circuit Court of Appeals. In this decision, the Second Circuit reinstated part of a highly publicized lawsuit that accused McDonald’s of misleading young consumers about the healthiness of its products.
The Second Circuit’s decision concluded that the trial judge in the case incorrectly dismissed parts of the lawsuit brought on behalf of two New York children on the grounds that the lawsuit complaint failed to link the children’s alleged health problems directly to McDonald’s products. For the trial court to dismiss the case on those grounds without a trial, the Second Circuit essentially held that such a ruling could only come in summary judgment proceedings after discovery and presentation of summary judgment evidence. Thus, the decision at least opens the door a crack for the plaintiffs’ lawyers to demand in discovery from McDonald’s the type of previously secret documents regarding the company’s promotion of unhealthy products that ultimately led to a string of multi-billion dollar verdicts against Big Tobacco companies.
John F. Banzhaf III, a George Washington University professor of public-interest law who has advised plaintiffs in the big tobacco cases, is an unpaid adviser to the McDonald’s plaintiffs in this case.
Despite McDonald’s protestations to the contrary, Super Size Me has already had an effect the way in which McDonald’s promotes its menu. In early 2004, McDonald’s removed the “super size” option from the menus of its 13,000 U.S. restaurants and it began promoting a new line of premium salads. The company also began promoting milk as an alternative to soft drinks and sliced apples as a substitute for French fries in its famous Happy Meals for children.
I suspect that those apples have not competed particularly well against McDonald’s French fries. ;^)