Part of obesity suit revived against McDonald's

A federal appeals court on Tuesday revived part of the widely-watched obesity suit against McDonald's Corp. that accuses the world's biggest fast-food company of using misleading advertising to lure children into eating fattening, unhealthy foods.

The U.S. Second Circuit Court of Appeals ruled that a trial judge wrongfully threw out certain portions of the complaint in September 2003 on grounds that it lacked information linking the plaintiffs injuries with eating McDonald's foods. The panel did, however, uphold other parts of the dismissal.

The appeals court said the proof about injuries could be provided during pre-trial proceedings and did not need to be included in the initial filing. It said it was sending the case back to the trial judge for further proceedings.

The ruling comes on the same day that "Super Size Me," a documentary about a man's month-long diet of McDonald's fast food, was nominated for an Oscar.

McDonald's said they expected the obesity suit will be thrown out again.

"As we have consistently said, common sense tells you this particular case makes no sense. Today's ruling, which is strictly procedural, simply delays the inevitable conclusion that this case is without merit," McDonald's said.

"We are confident this frivolous suit will once again be dismissed," McDonald's said.

The 2003 ruling marked the second time U.S. District Judge Robert Sweet dismissed the case brought on behalf of two youngsters who blamed their obesity, diabetes and other health problems on Big Macs and Chicken McNuggets.

Sweet said the plaintiffs had not followed detailed instructions he gave when he first threw out the case and told the plaintiffs they could submit a new filing with information backing up their advertising allegations.

He said the complaint did not answer such questions as "What else did the plaintiffs eat? How much did they exercise? Is there a family history of the diseases which are alleged to have been caused by McDonald's products."

The judge said that without this information McDonald's did not have sufficient information to determine if their foods caused the plaintiffs obesity or if instead the products were only a contributing factor.

The suit had raised fears in the food industry of a new wave of tobacco-like litigation against restaurants and manufacturers. Indeed, when the judge threw out the first case, he left the door open to further litigation. In that ruling he referred to Chicken McNuggets as a "McFrankenstein creation" made of elements not used in home cooking.