Sunday, March 2, 2008

i'm lovin' it!

Yes, I have to admit that I am a mom that allows her children to eat McDonald’s. Not daily, or even weekly, but, yes, from time to time we visit the “golden arches.” My almost three year old just loves the French fries and chicken McNuggets. I feel comfortable taking the position that the occasional French fry does not make me a bad parent or remiss in the nutritional needs of my children. That being said, I would not feed my children (or recommend that others) eat fast food on a frequent basis. This is a safe enough ground so far, I would think. Yet, I am not persuaded that fast food is “unmerchantable” under 2-314.

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.

1 comment:

Patrick S. O'Donnell said...

As a vegetarian for over 30 years, and having raised our (now adult) children as vegetarians, and not having been to a McDonalds for over 30 years, I nonetheless well understand the value of "happiness for mom and the little guy" (i.e., there's nothing to feel guilty about) and I agree with your reading of the cited legal cases. I would simply ask, however, that you carefully consider, if you've not already, some of the arguments for vegetarianism, as well as take a look at Jason Epstein's review of Michael Pollan's In Defense of Food: An Eater's Manifesto in the March 20, 2008 issue of The New York Review of Books. I'm sending along a bibliography that contains not a few books arguing the case for vegetarianism, although I have no idea of how likely it may be that someone drastically alters their dietary regimen based on what they've read in a few books.

All good wishes,