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Brazilian Judge: McDonald's Liable for Man's Obesity

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Next up -- suing the ocean for "making you wet."

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Judge Joao Filho of Brazil has awarded a former McDonald's (MCD) franchise manager $17,500 in damages, after the 32 year-old man sued the chain for making him fat.

According to the 32 year-old man, whose name has not been made public, the free lunches provided by the chain were to blame -- obviously, a band of rogue Big Macs managed to render him immobile, pry his unwilling mouth open, and force-feed their sorry victim like a goose being fattened for foie gras.

But, therein lies what really elevates this case beyond the heights of absurdity. "Fat," in this instance, is a total weight-gain of 65 lbs. over the course of 12 years.

That's 5.4 lbs. per year.

0.10 lbs. per week.

0.01 lbs. a day.

"We're disappointed with this preliminary court ruling, as it's not an accurate representation of our highly regarded work environment and culture," McDonald's said in a statement. "This case is still a pending legal matter and it would be premature to draw conclusions at this time."

The conclusion that must be drawn, premature or otherwise, is that these sorts of legal actions must be brought to, well, a conclusion.

Dr. Elizabeth Whelan, President of the American Council on Science and Health tells Minyanville, "Obesity is a very complex problem and people always want simple solutions. Blaming a food chain is a very simple solution. I'm horrified, frankly."

Timothy H. Lee, Vice President of Legal and Public Affairs at the Center for Individual Freedom in Washington, D.C., says:

"The good news is that this case is attracting international attention because it's so absurd. The bad news is that it's clear the members of the plaintiffs bar is devising new ways to feed themselves. It may be ridiculed, but it's certainly something to be wary of because it's not the last we're going to be seeing of it."

Lee notes that chains like McDonald's, Burger King (BKC), Taco Bell (YUM), Wendy's (WEN), and Jack in the Box (JACK) "need to remain vigilant."

It's certainly not the first time we've seen this sort of activity.

In 2002, attorney Samuel Hirsch filed a lawsuit alleging that fast food operators create "de facto addictions" in their consumers, most notably the poor and young people.

"You don't need nicotine or an illegal drug to create an addiction, you're creating a craving," Hirsch said. "I think we'll find that the fast-food industry has not been totally up front with the consumers."

The lead plaintiff, 56-year-old maintenance supervisor Caesar Barber, ate at fast-food restaurants "four or five times a week" on which he blamed his obesity, diabetes, high blood pressure and cholesterol, and two heart attacks.

"I trace it all back to the high fat, grease and salt, all back to McDonald's, Wendy's, Burger King. There was no fast food I didn't eat, and I ate it more often than not because I was single, it was quick and I'm not a very good cook," he said in an interview.

The answers to obesity will probably not be found in the halls of the justice system.

In a position paper [PDF] titled "Suits against 'Big Fat' Tread on Basic Tort Liability Principles" by George Mason University law professor Michael I. Krauss wrote:

"Those who back the lawsuits against 'Big Fat' hope, as noted above, to leverage them to obtain tax and police action against fast foods. These folks deplore the 'epidemic' of obesity, as if it were the equivalent of the smallpox or polio epidemics, which resulted in mandatory vaccination programs. But smallpox and polio, unlike obesity, spread involuntarily. The obesity 'epidemic' is not of this ilk. It is a complex result of shifts in living patterns and of cultural phenomena that lead to free choices to over-consume food and under-consume exercise. Those choices, if socially inappropriate, are perhaps appropriately criticized. Existing legislation may inadvertently contribute to the problem, and public legislation (from reforming zoning bylaws to relaxing the public school monopoly, to modifying the food stamp program to many other initiatives) may have a useful role to play in solving the problem. But reducing obesity is neither within the scope of, nor respectful of, the nature of tort law. Suing 'Big Fat' is a big fat mistake."

Of course, the issue of whether or not litigants can win these sorts of cases (Brazil notwithstanding) is an important factor.

Attorney Lianne Pinchuk, writing in the National Law Journal, posited [PDF]:

"…despite a few well-publicized lawsuits (some of which have had the effect of changing the content of some companies' food), there appears to be little basis for widespread and panic-inducing predictions. There have been few successes in litigation against Big Food, and most of the successes in obesity-related lawsuits have dealt with mislabeling or consumer fraud, which is unlikely to lead to damages awards akin to those seen in personal injury tobacco litigation.
"Tobacco companies and fast food restaurants are not treated the same way by the courts, and such disparate treatment is likely to continue. Attempts to use tobacco litigation as a model for fast food litigation have generally failed and will likely continue to fail in the future.
"Moreover, most of us have snacked periodically at a McDonald's without any negative health effects, whereas smoking even periodically has demonstrably detrimental effects to one's health. Because the actual differences between cigarettes and fast food will be known to jurors (and judges), the legal landscape faced by fast food companies is clearly more favorable than that faced by tobacco companies."

As for specific chains being more susceptible than others to frivolous obesity lawsuits?

Independent trader Jeff Macke maintains it has less to do with the food than with the management.

"This ruling in Brazil won't set any sort of precedent whatsoever for McDonald's," he tells Minyanville. "They'll figure out exactly which Brazilian officials they need to pay off and make sure it doesn't happen again."

However, Macke says, "Burger King would be screwed, but McDonald's is too good. They won't be touched."

Macke blames it on BK's ingrained incompetence.

"They wouldn't know who to bribe," he says. "They'd have it explode into a big deal and end up like Batista in Cuba -- kicked out on their butts."

Perhaps a more intelligent route toward healthful living would be to legislate a little something called "self-control."

No positions in stocks mentioned.
The information on this website solely reflects the analysis of or opinion about the performance of securities and financial markets by the writers whose articles appear on the site. The views expressed by the writers are not necessarily the views of Minyanville Media, Inc. or members of its management. Nothing contained on the website is intended to constitute a recommendation or advice addressed to an individual investor or category of investors to purchase, sell or hold any security, or to take any action with respect to the prospective movement of the securities markets or to solicit the purchase or sale of any security. Any investment decisions must be made by the reader either individually or in consultation with his or her investment professional. Minyanville writers and staff may trade or hold positions in securities that are discussed in articles appearing on the website. Writers of articles are required to disclose whether they have a position in any stock or fund discussed in an article, but are not permitted to disclose the size or direction of the position. Nothing on this website is intended to solicit business of any kind for a writer's business or fund. Minyanville management and staff as well as contributing writers will not respond to emails or other communications requesting investment advice.

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