Litigation

Happy Meals -- Too Much Happiness?

By Bruce Nye

CBL takes you now to the Center for Science In The Public Interest, a non-profit advocacy group whose described goal is the admirable one of "Transforming The American Diet."   More roughage, fewer fries, CBL can get behind that. 

But naturally, CSPI has, wait for it, a litigation department.  Well of course it does.  And its Litigation Director is taking on McDonald's Happy Meals.  Why?  Because:

McDonald?s is deliberately marketing directly to unsuspecting little children by offering appealing toys?usually ones related to popular movies or television shows. McDonald?s marketing has the effect of conscripting America?s children into an unpaid drone army of word-of-mouth marketers, causing them to nag their parents to bring them to McDonald?s.

And according to CSPI, marketing to children is inherently unfair and unlawful, because

. . . because young kids are not developmentally advanced enough to understand the persuasive intent of marketing; and (2) unfair to parents, because marketing to children undermines parental authority and interferes with their ability to raise healthy children.

CSPI is threatening McDonald's with suit under a variety of state statutes including, of course, our old friend the Unfair Competition Law, California Business & Professions Code Section 17200.

So, what would a case like that look like under the UCL?  Well, first of all, CSPI would have to prove that McDonald's engaged in a business practice.  Not a problem.  Then they'd have to show the practice was unlawful, unfair or fraudulent.  The "unlawful" prong, prohibits "any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made."  South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861.  But I'm hard pressed to come up with an applicable law that fills the bill.  On the other hand, Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197 strongly suggests that predatory advertising to children may fit either the unfair or fraudulent prongs.

But wait, there's more.  The 2004 voter initiative Proposition 64, sponsored by business to mitigate some well-documented abuses of the UCL, requires that a UCL action may be brought only  "by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition."

Has a six-year-old child who cajoles her parents into taking her to McDonald's to get a happy meal "suffered injury in fact," or has she just been fed?  And how has she lost money or property as a result of the "unfair competition."

Sounds like a very tough darned near impossible burden.

Full post as published by CalBizLit on June 23, 2010 (boomark / email).