If your first frivolous suit doesn’t succeed, sue Burger King on the same theory

The misnamed Center for Science in the Public Interest, fresh from their loss earlier this month against KFC (May 3), has sued Burger King on the same theory that the legal act of selling foods that contain trans-fats is actionable. (Burger King discloses trans-fat content on its website, so any claim of failure to warn is patently false.) CSPI’s Stephen Gardner self-servingly writes about the suit on the Public Citizen blog without once mentioning the earlier slapdown, much less the fact that the reason trans-fats are so prevalent in the American diet today is that CSPI and its ilk worked so hard to persuade people to use trans-fats instead of saturated fats in the 1980s through similar tactics. CSPI should be suing itself. The question is why courts condone the misuse of the legal system to act as a public-relations device.

4 Comments

  • “The question is why courts condone the misuse of the legal system to act as a public-relations device.”

    That’s easy: $$$$$$$$$

  • Ted,

    I am sympathetic to your belief that these lawsuits against fastfood companies for transfats should not proceed, but I have two substantive questions:

    1. Is disclosing the level of transfats on their website sufficient? If a were to buy another product, with a component that has a health-risk, could the company disclaim that risk by saying their was a warning on their website that the consumer had the affirmative duty to find? Shouldn’t Burger King, at the least, have to have the information more readily available in-store?

    2. I’m not sure this is frivolous; when strict liability claims were being litigated (before the Traynor revolution) they surely seemed to be an unwarranted extension of existing law, yet here we are; sometimes it takes several attempts in court to get a novel application or extension of existing law applied as ‘good law’. As such, I don’t believe that this is a frivolous suit.

    Again, I agree with you on normative grounds (anyone who eats fast food hass to know that it is not a healthy food choice as opposed to, say, carrots), and I don’t think believe that the plaintiffs should win on a ‘failure to warn’ claim absent some internal documentation from BK (“Wow, look at all those CIs our trans fats are causing… we might want to tell people, but it would be better to make an extra penny a burger!”). That said, I don’t believe that a website posting would be sufficient, and that the lawsuit is ‘frivolous’ (I just don’t like it).

  • 1) Your first question is inapposite: the weblink is to a pdf of the nutritional brochure available in every Burger King to anyone who asks for it.

    2) You are correct that this case is frivolous only in the English-language sense, rather than the narrow technical legal sense, and that the legal profession’s norms permit bringing a losing suit over and over again and incurring costs on innocent defendants.

  • “…anyone who eats fast food hass to know that it is not a healthy food choice as opposed to, say, carrots.”

    Actually, fast food is much more healthful than carrots. You can live for a long, long time eating nothing but Whoppers, much longerthan you can live on a carrot-only diet.