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Cohen v. McDonald's Corporation

February 13, 2004

[5] MARC S. COHEN, AND SIMILARLY SITUATED PARTIES, PLAINTIFF-APPELLANT,
v.
MCDONALD'S CORPORATION, AND ITS FRANCHISEES, AND MCDONALD'S RESTAURANTS OF ILLINOIS, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County. 02 CH 2705 Honorable John K. Madden, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Reid

[8]  The appellant, Marc S. Cohen, appeals from the trial court's order that dismissed his class action lawsuit for consumer fraud and deceptive business practices and common law fraud against defendants McDonald's Corporation and its Franchisees, and McDonald's Restaurants of Illinois (McDonald's). Cohen's complaint alleged that McDonald's violated federal nutritional labeling regulations with regard to its Happy Meal(TM) menu item. On appeal, Cohen argues that the trial court erred because: (1) his cause of action is not barred by the doctrines of preemption or primary jurisdiction and (2) his complaint sufficiently stated a cause of action. For the reasons that follow, we affirm the decision of the trial court.

[9]  BACKGROUND

[10]   On February 5, 2002, Cohen filed a two-count class action lawsuit against McDonald's for: (1) consumer fraud and deceptive business practices and (2) common law fraud. His complaint alleges that one of the food products that McDonald's sells is the Happy Meal(TM). A Happy Meal(TM) consists of a McDonald's food entree, a small order of french fries, a small drink and a toy. Around 1990, McDonald's developed a marketing strategy to expand Happy Meal(TM) sales by targeting children ages one to three. As part of this marketing strategy, McDonald's entered into an agreement with Fisher-Price. The agreement provided that Fisher-Price would design toys, for children ages one to three, to be distributed with the Happy Meal(TM).

[11]   In 1995 McDonald's began making nutritional information for its food products available to its customers in the following ways: (1) displaying documents known as "McDonald's Nutrition Facts" on posters and signs in its restaurants, (2) making copies of the McDonald's Nutrition Facts for customers on 8 ½- by 11-inch paper, (3) displaying and making available McDonald's Nutrition Facts on the Internet, and (4) offering and making copies of McDonald's Nutrition Facts available to persons who telephoned or wrote to McDonald's headquarters.

[12]   The McDonald's Nutrition Facts document lists each individual food item that the restaurant serves. It does not list the Happy Meal(TM). The document then lists certain information about the menu items, such as the serving size of and number of calories in each item and the daily percent value of, inter alia, calcium, vitamins A and C, the number of calories and total fat.

[13]   Count I of Cohen's complaint alleged that McDonald's committed consumer fraud and deceptive business practices in violation of section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 2002)) (the Act). Section 2 of the Act states:

[14]  
"Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the 'Uniform Deceptive Trade Practices Act', approved August 5 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act." 815 ILCS 505/2 (West 2002).

[15]   In particular, count I alleged that McDonald's violated the Act by: (1) misrepresenting that its food products have a nutritional value that they do not have, (2) misrepresenting that its food products are of a particular standard quality or grade, (3) misrepresenting nutrient content values for foods targeted for consumption by children ages one to three, and (4) failing to adhere to the National Labeling and Education Act of 1990 (21 U.S.C. § 341 et seq. (2000)) (NLEA) nutritional requirements.

[16]   Count II of the complaint alleges that McDonald's committed common law fraud. Specifically, count II alleges that McDonald's knowingly made and continues to make one or more of the following false representations:

[17]  
"(1) McDonald's represents that its food products have a nutritional value that they do not have; (2) McDonald's represents that its food products were of a particular standard, quality or grade where they are of another; (3) McDonald's includes toys intended for children ages one to three in its Happy Meals thereby offering a food product intended for children under 4 years of age without adequate revision of the nutritional information; and (4) McDonald's misrepresents nutrient content value for foods targeted for consumption by children, ages one to three."

[18]   On March 15, 2002, McDonald's filed a combined motion to dismiss Cohen's complaint pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2002)). In its section 2-619 motion to dismiss, McDonald's argued that Cohen's claims are preempted by federal law and regulations. In particular, McDonald's maintained that Congress has made the express determination that only the Food and Drug Administration (FDA) may regulate nutrition labeling. Additionally, McDonald's contended that the congressional grant of authority and extensive FDA regulations regarding labeling also impliedly preempt Cohen's claims. Alternatively, McDonald's argued that Cohen's cause of action should be dismissed under the doctrine of primary jurisdiction because the "FDA has the required 'specialized expertise' in branding and labeling of food and drinks."

[19]   In its section 2-615 motion to dismiss, McDonald's argued that Cohen's complaint failed to sufficiently state a cause of action. Relying on 21 C.F.R. §§101.9(j)(2)(i) and 101.10 (2003), McDonald's argued that all restaurants are generally exempt from making any nutritional declarations. McDonald's argued that the regulations that are the source of Cohen's complaint apply only to foods "represented or purported to be specifically for infants and children less than 4 years of age." 21 C.F.R. §101.9(j) (5)(ii) (2003). Consequently, McDonald's concluded that the regulations do not apply to foods like hamburgers, french fries, and soft drinks that are intended for adults and children over four years of age, even if they are sometimes consumed by children under four years of age.

[20]   On June 20, 2002, the trial court granted McDonald's motion to dismiss in its entirety. On July 16, 2002, Cohen timely filed his notice of appeal.

[21]   ANALYSIS

[22]   Cohen argues that the trial court erred when it granted McDonald's motion to dismiss. Cohen argues that the trial court erred when it determined that his cause of ...


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