04 May 2007
In yet another defeat for fast food claims, a claim against KFC has been dismissed in the United States. Although the court dismissed the action not on the merits but because the plaintiff did not argue he had been injured by the food, and it could theoretically be brought again, it's another illustration of how difficult it will be to litigate in this area.
The doctor and the drumstick
The plaintiff, Dr Arthur Hoyte, is a retired doctor who wanted to avoid trans fat. He was presumably disappointed to learn that the KFC products he bought in 2004-2005 were cooked using trans fat (although as he was a retired doctor, one could assume he might be aware of the health properties of fast food).
Unlike the (unsuccessful) hefty children in previous US cases, Dr Hoyte was not seduced by free toys, nor did he eat it every day. In fact, he did not actually argue he had been damaged by eating KFC's products. Rather, he argued that, while KFC advertises on its website and in its restaurants that it sells the "best food," and that KFC products are part of a nutritionally healthy lifestyle, the ads do not reveal the use of trans fats, nor were there warning signs or other information about trans fat at the KFC outlet from which Dr Hoyte purchased KFC products (KFC no longer cooks in trans fat).
Dr Hoyte argued that these claims and the failure to disclose the presence of trans fat, breached local laws implying a warranty of merchantability and the D.C. Consumer Protection Procedures Act. They also amounted, he said, to negligent misrepresentation.
No harm, no foul
The court did not consider the merits of any of these arguments because Dr Hoyte had not claimed that he had been injured by any of the alleged breaches or negligent misrepresentation. Accordingly, the court dismissed the complaint.
However, the court observed that the assertions underlying Dr Hoyte's claim might not withstand proper scrutiny at trial. For example, a claim that a food breaches its implied warranty of merchantability requires proof that the harmful element is outside the reasonable expectations of the consumer - but what do people eating fast food expect is in the food? It may be that the reasonable consumer is aware of the fat content.
The court also noted that claims that KFC products are the "best food" or part of a healthy lifestyle cannot be the basis of a claim at all. "Best food" claims are just boasting, and there's nothing in the second claim to suggest that trans fats are healthy, or how frequently KFC products can be consumed in order to be part of a healthy lifestyle.
And what next?
This case failed because there was no injury. Even if Dr Hoyte could claim he suffered injury, there are complex questions of causation that would arise, and as we've seen over the last few years, this sort of litigation often fails on the basic problem of causation.
One might be tempted to suggest that this sort of litigation could not be brought in Australia now that misleading or deceptive conduct or false representations cannot be the basis of a personal injury claim under sections 52 and 53 of the Trade Practices Act (except if the death or personal injury results from smoking or other use of tobacco products). However, equivalent reform has not been made to all State Fair Trading legislation, so these causes of action remain available in some states. It is also open to argue that any misleading or deceptive conduct in the advertising of a product is a relevant consideration in determining whether a product is defective under Part V of the Trade Practices Act.
