Fast Food Justice: Infamous Cases Involving French Fries, Obesity, Too-Hot Coffee, and Fingertips

By HOWARD WASSERMAN

Thursday, Oct. 06, 2005

Chief Justice John G. Roberts, Jr. began his tenure on the Supreme Court this week as a jurisprudential mystery. His three days of testimony in September were a study in generality; Roberts declined to discuss specific cases or issues that might come before the Court.

Roberts's track record wasn't very enlightening either. Much of his lawyering was explained away on the ground that he was making his clients' cases, not necessarily expressing or pushing his own views.

Prior to his nomination, Roberts had been a judge on the United States Court of Appeals for the D.C. Circuit for approximately two years, authoring fewer than 50 opinions. Commentators and court watchers searched for anything in this limited oeuvre that might be predictive of what Chief Justice Roberts will be like.

They found a french fry. And we have an addition to the canon of a new field of interdisciplinary legal studies: Law and Fast Food. In this column, I will discuss Roberts's french fry case and other law-and-fast-food cases.

In his recent book, Fast Food Nation, Eric Schlosser argues that the "whole experience of buying fast food has become so routine, so thoroughly unexceptional and mundane, that it is now taken for granted, like brushing your teeth or stopping for a red light. It has become a social custom as American as a small, rectangular, hand-held, frozen, and reheated apple pie."

No wonder, then, that disputes over this custom have found their way into the judicial system. Any culturally significant and influential institution should be expected to influence the law, and vice-versa.

The Case of the Single French Fry

The french fry was the star of the D.C. Circuit case Hedgepeth v. Washington Metropolitan Area Transit Authority. The action was brought under a federal civil rights statute allowing suits for damages against the government for constitutional violations.

Tracey Hedgepeth brought the lawsuit on behalf of her twelve-year-old daughter, Ansche. Ansche ate one french fry from a take-out bag in a D.C. Metrorail station. For this "crime," she was subjected to a full custodial arrest by a plain-clothes police officer.

How could this have happened? D.C. law prohibits eating in Metrorail stations. Under then-existing regulations, adults who enjoyed a bissel to nosh could be issued citations, but minors had to be handcuffed and arrested for the same misconduct. (Fortunately, regulations have changed - after, in Roberts's words, "those responsible endured the sort of publicity reserved for adults who make young girls cry.")

Hedgepeth argued that Ansche's Fourth Amendment rights against unreasonable search and seizure had been violated. Under the Fourth Amendment, an arrest counts as a "seizure" of the person. In essence, the argument was that it was unreasonable to arrest Ansche for her tiny french-fry infraction, a non-jailable offense.

Hedgepeth also argued that Ansche's Fifth Amendment right to equal protection was violated by the unreasonable difference in the treatment of minors and adults for violating the no-eating ordinance; this distinction, which punished presumably less culpable younger violators more harshly, they said, failed even a "rational basis" test. (Although the Fifth Amendment does not explicitly mention a right to equal protection of the law, courts have construed it to include one. The Fifth Amendment, rather than the Fourteenth Amendment, applied because of D.C.'s special federal status.)

Judge Roberts, writing for a unanimous panel, rejected both of Ansche's constitutional claims. He criticized and questioned the wisdom of the policy at issue, but emphasized that just because a policy is stupid does not mean it is unconstitutional.

Hedgepeth certainly is a "what were they thinking?" case. It involved minor conduct and over-the-top government action--a young girl hauled off to the station in tears and handcuffs for an extremely minor violation (eating just a single french fry) of a "quality-of-life" ordinance.

But arresting someone for eating on a train platform is not obviously more troubling than arresting a mother, in front of her two small children, for driving without having herself and the children in seat belts. In Atwater v. City of Lago Vista, the Supreme Court held that a full custodial arrest in that situation was constitutional, even though not wearing a seat belt was a non-jailable offense. Roberts said that Atwater controlled and dictated the outcome in Hedgepeth.

It seems french-fry-eaters like Ansche were legion. She was arrested during a week-long, zero-tolerance undercover police operation that targeted misconduct, particularly eating, by young people at certain Metro stations. It is significant that the food at issue was french fries - rather than, say, a handful of cashews. Because, ironically, fast food is created, packaged, and meant to be eaten on the run, in places such as train stations.

An Important McLawsuit: Suing McDonald's for Minors' Obesity

McDonalds has been the obvious target of fast-food lawsuits. Such cases inevitably get nicknames with the "Mc" prefix, and lead cartoons depicting Ronald McDonald appearing in court.

In August 2002, for instance, a class action -- Pelman v. McDonald's Corp. -- was brought in federal court in New York on behalf of two overweight minors. The suit alleged that McDonald's had engaged in deceptive practices, violating New York's Consumer Protection Act, that had caused the children's obesity.

This long-expected lawsuit was the first major salvo by consumer and health advocates (and plaintiffs' lawyers) against the fast food industry. They sought to challenge the fast-food industry using the mass-tort model that finally had proven effective against Big Tobacco.

Initially, the district court dismissed the complaint for failure to state a legally actionable claim. But the U.S. Court of Appeals for the Second Circuit reversed - holding that one of plaintiffs' statutory deceptive-practices claims had been pled with sufficient specificity. The case will proceed to discovery, investigation, and discussion of the relationship among fast food, fast food industry practices, consumer health, and consumer choices. Earlier opinions have focused on arguments and evidence (including Schlosser's analysis) that McDonald's sold altered and engineered food that was dangerous beyond what a reasonable consumer should expect. For example, the court described Chicken McNuggets as a "McFrankenstein creation of various elements not utilized by the home cook." But it is far from clear whether plaintiffs will win their case: The court has also focused on the tort principle that one is responsible for one's own voluntary conduct.

This year, Congress entered the mix through the Personal Responsibility in Food Consumption Act, commonly known as the "Hamburger Bill" (again with the nicknames). As reported to the House floor in July, the bill prohibits lawsuits in state or federal court (presumably including Pelman) seeking to recover for weight gain, obesity, or other health problems relating to consumption of fast food and other products. The bill, if enacted, would short-circuit one major area of Law and Fast Food litigation.

In any event, maybe Ansche Hedgepeth is better off for not having eaten more of those fries.

A Controversial McLawsuit: Suing McDonalds for Too-Hot Coffee

In 1992, McDonalds had faced a personal-injury action by seventy-nine-year-old Stella Liebeck -- who suffered third-degree burns on her thighs, buttocks, genitals, and groin when a cup of McDonald's coffee spilled in her lap. She claimed that McDonald's kept its coffee at too high a temperature, making it a defective, unreasonably unsafe product that caused injuries far more serious than a simple spill otherwise should have.

A jury agreed, awarding her $160,000 in compensatory damages and $2.7 million in punitive damages (the trial judge reduced the latter to $480,000).

The parties ultimately settled for an undisclosed amount.

In Distorting the Law: Politics, Media, and the Litigation Crisis, William Haltom and Michael McCann argue that the McDonald's coffee case "is likely responsible for more of the everyday knowledge about the U.S. justice system than any other lawsuit." As they note, it has been discussed, referenced, ridiculed, and parodied in every medium, including the famous "The Maestro" episode of the television show Seinfeld.

The case can serve as a cautionary tale for everyone. On one hand, Liebeck became Exhibit A in the case for tort reform, a person many saw as unwilling to accept personal responsibility for her own carelessness: After all, some noted, McDonald's made the coffee, but she spilled it.

On the other hand, the case also became a rallying point for critics of the mainstream media's coverage of the judicial system. The media, Haltom and McCann argue, distilled the case to shallow, sensational, and simplistic accounts. It also changed the interpretive narrative from the unreasonably dangerous product case that Liebeck had argued (successfully) to the jury, to a simpler, more visceral, and arguably inaccurate story of a woman receiving a financial windfall for doing something as stupid as holding a cup of coffee in her lap in a moving car.

A Fraudulent Fast Food Claim: The "Wendy's Chili Finger"

The most recent fast-food controversy was the "Wendy's chili finger" imbroglio. Earlier this year, a woman claimed to have found a human fingertip in a bowl of Wendy's chili, a discovery she claimed caused her severe emotional distress.

Her story quickly unraveled, however. DNA evidence showed that the finger belonged to a co-worker of the woman's husband. It soon was revealed that the co-worker had, apparently innocently, given the fingertip -- severed in a work accident some years ago -- to the husband to settle a debt (the precise nature of which is unknown and quite difficult to imagine). The woman and her husband had hoped to use the finger to get money from Wendy's. They both pled guilty to charges of conspiracy and attempted grand theft.

This is only the latest story of adulterated fast food. Websites, such as SNOPES.com, that discuss and debunk urban legends devote sections to tales of adulterated food, from body parts in the food to blood in the ketchup to "Kentucky Fried Rat." Of course, stories of fingertips in chili or rats in fried chicken take root with the public for a reason. People are ready to believe because, at some level, it is conceivable that just about anything could find its way into McFrankenchicken.

A Well-Known McLibel: Suing over Greenpeace's Fact Sheet

In a case from Great Britain, it was McDonald's going on the offensive, suing two members of London Greenpeace for defamation resulting from their distribution of a "Fact Sheet" about fast food industry practices.

The leaflet had alleged that McDonalds (and the rest of the burger industry) had caused a vast catalogue of harms, including evicting small farmers from their land, destroying the rain forest to create grazing land, damaging the environment and quality of urban life due to litter outside the restaurants, imperiling public health by selling food high in sugar and salt, targeting advertising at children, raising animals (particularly chickens) in cruel and inhumane conditions, paying low wages, and fighting unionization.

What followed was the Bleak House of the Law and Fast Food movement. McLibel was the longest civil litigation in British history, lasting almost seven years from complaint to verdict, and pitting a major corporate and cultural institution against two individuals who doggedly and somewhat effectively represented themselves (with a great deal of popular and legal support).

In the end, the case produced a split verdict, in which the trial judge found some of the statements in the leaflet justified by the factual record, and awarded McDonald's half of what it had sought; an appeals court then further reduced the award, based on a finding that additional statements were also justified.

The judgment-proof defendants could not and would not pay damages in any event, and McDonald's declined to seek injunctive relief to stop them from distributing the leaflet in the future.

Most recently, the European Court of Human Rights ruled that the British court's failure to provide the defendants with legal counsel deprived them of their human rights.

It is ironic that McDonald's, the quintessential American company that made hamburger and french fries the quintessential American meal, went to England to launch a judicial crusade against its critics. But McDonald's went there for a reason. Unlike U.S. law, English libel law imposes on the defendant the difficult burden of proving the truth of allegedly libelous statements. Here, however, the controlling First Amendment rule of New York Times Co. v. Sullivan requires that a public-figure plaintiff (as a major international corporation such as McDonald's unquestionably would be) prove that the statements were false, and that the defendants knowingly or recklessly disregarded their falsity in making them. McDonald's probably could not have satisfied that standard.

Moreover, the McLibel case involved the supposed truth or falsity of complex and contested scientific assertions--about the healthfulness of McDonald's food, the effects of practices on the rainforest, the targeted nature of the advertising, how much recycled product actually was used, and so on. As a matter of free speech principle, it would be troubling to have a court officially declare such statements scientifically true or false.

Law and Fast Food: A Burgeoning Area

Ultimately, reasonable minds will differ as to whether Hedgepeth was correct as a matter of constitutional law. Professor Vikram Amar suggested in this space that Roberts's failure to distinguish Atwater reveals a constricted view of the Fourth Amendment.

We will have to wait and see what Chief Justice Roberts will do in the area of constitutional and civil rights law for the next 20-30 years. Hedgepeth did not come up during Roberts's confirmation hearings, and it obviously did not prevent him from being confirmed. In the end, we can say only that Hedgepeth joins some select company in the pantheon of the Law and Fast Food movement.

Does anyone know if Harriet Miers wants fries with that appointment?


Howard M. Wasserman is an Assistant Professor of Law at FIU College of Law. He can be reached at howard.wasserman@fiu.edu.

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