Although I would expect many to side with me on this one, several recent cases argued just that. This makes me wonder if I am missing something with the warranty of merchantability. In Hoyte v. Yum! Brands, Inc., 489 F. Supp 2d 24 (D.D.C. 2007), a physician argued that KFC food, particularly the French fries and chicken, breached the warranty of merchantability due to the trans-fats. The court granted the defendant’s motion for summary judgment because the physician could not allege an injury, but noted that “it might be appropriate for this court to find, as a matter of law, that the consumption of fat-including trans fat – is indeed within the reasonable expectations of the consumer of fried chicken and French fries prepared in fast food kitchens . . . .” Similarly, the court in In re McDonald's French Fries Litig., 503 F. Supp 2d 953 (N.D. Ill. 2007) dismissed claims of breach of the warranty of fitness for particular purpose in a case involving customers with special dietary issues and sensitivities to milk querying what the “non-ordinary use of a French fry or hash brown is.” Rounding out a trio of these cases was Gonzalez v. Pepsico, Inc., 489 F. Supp 2d 1233 (D. Kan. 2007), where the claims for breach of implied warranty of merchantability survived because the plaintiffs alleged the beverages contained benzene. The court compared the ordinary purpose under 2-314 with the tort principle of defect.
All and all, these cases seem correct. I don’t believe that I can state a claim against McDonald’s for selling me “unmerchantable” French fries. Like the physician, it would be a hard case in my situation to show that my child was injured from the occasional fry (unless there is some long term ill-effect that I do not know of now). The ordinary purpose is satisfied when my toddler squeals with joy when mom relents and pulls through the drive-thru for that occasional order of a Happy Meal. Happiness for mom and the little guy. Merchantable? I think so.