TCS Daily


By Duane D. Freese - February 27, 2003 12:00 AM

The refiling of the lawsuit for two obese teen-agers against McDonald's - Pelman v. McDonald's - brings to mind an old Bill Cosby joke.

Cosby is awakened one morning by his tired wife, who tells him to go down and feed the children breakfast. He eventually does, grumpily and spies a chocolate cake. And his mind goes to the recipe for chocolate cake. There are eggs in chocolate cake. And flour. And milk. There's nutrition in chocolate cake!

So when the kids come down for breakfast, he slices them servings of chocolate cake, and the kids sing in praise of him, until the mother comes down, who has a conniption and sends Cosby back to bed, "where I wanted to be in the first place."

Do we really believe Cosby ever really served the cake, or, if he did, he really thought it was nutritious? Of course not. But we suspend our disbelief and go along for the laugh.

The lawsuit against McDonald's requires a similar suspension of disbelief; only if we go along with it, it threatens to undermine our liberty.

The suit requires us to believe that McDonald's, in essence, hooked the teen-agers on their burgers and fries. Obesity is a real health problem. But this case is about trying to make it a bankable one for lawyers.

To do that, they hope people will blame someone else for their own weight problems - in particular, deep-pocket defendants, fast-food chain restaurants such as McDonald's. (You won't see a suit against the local Sweet Shoppe. No money there.)

That worked in the case of Big Tobacco. In the case of fast food, though, the lawyers have to get around a few facts. One, food in moderation is nutritious and vital. Two, people know when they are gaining weight, and they know that exercise and limiting their calorie intake are the only ways to lose it. Three, they know, that fast food is not lean and mean; while it is nutritious, it is often packed with calories. Five, there are numerous alternatives, including eating at home and making your own food.

Lawyers in the initial Pelman complaint failed to overcome these obstacles to get the federal judge in the case - Robert W. Sweet of the District Court of New York - to suspend his disbelief in their claim.

Unfortunately, though, rather than toss this bad joke of a lawsuit out totally, Sweet gave the lawyers an outline for redrafting it. If McDonald's food could be distinguished from other food as dangerous to health beyond the ken of the reasonable person, well, they might have a case. He even described Chicken McNuggets as a "McFrankenstein creation of various elements not utilized by the home cook," where "it is least a question of fact as to whether a reasonable consumer would know ... that a Chicken McNugget ... provided twice the fat of a hamburger."

And the new complaint follows Sweet's line, right down to attacking Chicken McNuggets.

To which, McDonald's should respond with two words: "Orange Chicken." Or three: "General Tso's Chicken." Or, two more: "Buffalo Wings."

The fact is that chicken in a variety of its appellations is far more caloric than many of its beefy counterparts.

A cup of Orange Chicken, according to the Weight-Watcher's Complete Food Companion, counts for 13 points on its nutrition scale, versus 11 for a cup of orange ginger beef. General Tso's chicken weighs in at 15 points. And Buffalo wings? Just three - and who eats just three? - come in at 9 points. Six Chicken McNuggets count 7. And even within the chicken nugget-strip category, they are less frightening than many other concoctions.

It requires a suspension of disbelief - and total culinary ignorance - to argue that McDonald's has done anything truly strange. And if the lawyers really think they have a better restaurant idea, well, they've got money from the tobacco settlement - finance it!

Instead, the lawyers seek people to suspend their personal responsibility. That's dangerous. For personal responsibility is the foundation upon which all liberty is built.

The punch line to Bill Cosby's joke is that father's may act dumb, but not be so dumb after all. Cosby got what he wanted, a trip back to bed.

The punch line in the McDonald's lawsuit will be if sly attorneys for the plaintiffs can get a judge and Americans in general to give up another bite of liberty to feed the lawyers' purses. The hope here is that people are not so dumb after all, and will send this case to a permanent rest, where it belongs.

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