A California superior court has dismissed with prejudice putative class claims filed against McDonald’s Corp. seeking to enjoin the company from advertising Happy Meals® to children featuring toys. Parham v. McDonald’s Corp., No. 10-506178 (Cal. Super. Ct., San Francisco Cty., decided April 4, 2012). Additional information about the case appears in Issues 375, 391 and 420 of this Update.

While the court did not explain why it sustained the company’s demurrers to the plaintiff’s first, second and third causes of action, it did so without giving the plaintiff leave to amend her complaint. According to the Center for Science in the Public Interest (CSPI), which was representing the plaintiff, consideration is being given to filing an appeal.

In its memorandum of law in support of its demurrers, the company argued that the plaintiff failed to state a claim for relief under the state’s Unfair Competition Law, Consumers Legal Remedies Act and False Advertising Law. Among other matters, the company contended that the plaintiff (i) lacked standing because “she received the Happy Meal she intended to purchase,” (ii) failed to allege causation because “she made an informed decision to purchase Happy Meals,” (iii) failed to allege that McDonald’s Happy Meal® advertising is “unfair,” (iv) did not allege that the company made a material misrepresentation or that she relied on one, and (v) did not allege “that a reasonable consumer would be deceived by a specific McDonald’s advertisement.”

The company characterized the plaintiff’s complaint as “a policy paper outlining CSPI’s political views and regulatory agenda” and noted the lack of any allegation that the plaintiff’s children were harmed by eating at McDonald’s. It also argued that her legal theory was “novel” and “legally deficient” and would make any advertising to children of any product the parent does not want to buy “an unfair trade practice.” Thus, “[a]dvertising any product to children would now be a per se violation of California consumer protection laws if the parent’s decision not to buy the product ‘place[s] a strain on parent-child interaction,’” something the plaintiff had alleged.

A company spokesperson reportedly said the lawsuit lacked merit and that McDonald’s was “proud” of its Happy Meals® and would “vigorously defend our brand, our reputation and our food.” CSPI Executive Director Michael Jacobson said, “Using toys, of all things, to lure young children to fast-food meals is not responsible corporate behavior. . . . In time, the practice of using toys to market junk food will seem as inappropriate and anachronistic as lead paint, child labor, and asbestos.” See CSPI News Release and Reuters, April 4, 2012.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.