Debra Goldman’s Consumer Republic

As McDonald’s awaits a New York judge’s decision on whether to dismiss a lawsuit brought against the company by eight obese teens, it can take some comfort in the knowledge that the people are on its side.

In dozens of on-the-street interviews and Web polls conducted since the suit made news last month, the masses have expressed their incre dulity at and contempt for the litigious kids—and parents—who won’t take responsibility for a lifetime of chowing down Happy Meals. With much tongue-clucking, the vox populi bemoans yet another symptom of the decline of personal responsibility and the rise of the cult of victimhood. For the vast majority, the McDonald’s suit is one of those no-brainer issues, like Michael Jackson’s parenting skills.

But hey, that’s how the public felt about the opportunists who sued the tobacco companies in 1994, too. And we know how that battle ended, both in the courts of law and the court of public opinion.

Lawyers for the fast-food industry must cringe every time their business is compared with tobacco. After all, there is no scientific link between Big Macs and obesity like the one between smoking and lung disease. But let us remember that it was not scientific evidence that brought down tobacco. The legal tide turned when the public—and thus the juries—became convinced that the tobacco companies were deceiving the public in general and vulnerable, impressionable children in particular. It was the marketing that was on trial, not the product.

From this point of view, fast food is in some ways more vulnerable than tobacco was. At least the cigarette companies could and did make the argument, however unsuccessfully, that they did not target children with their marketing. Fast-food companies cannot say the same, what with kid-flick promotional tie-ins, toy giveaways and on-site playgrounds. If I were a lawyer suing McDonald’s for leading the wee ones down the path toward hypertension and Type 2 diabetes, I’d bring to a court a tape of the “baby’s first french fry” commercial from last winter, in which a proud papa inculcates in his young one a lifelong taste for fried potatoes soaked in beef tallow.

Frivolous lawsuits are hardly McDonald’s only problem these days. Its worldwide expansion has slowed. Here at home, sales are flat. Despite its efforts to refresh the menu, its customers show signs of boredom and restlessness. Those who can afford to are trading up to sandwich shops that offer “gourmet” ingredients on “artisanal breads” and other upscale baked goods (whose regular consumption may make you even fatter than burgers and cheese do, if current research proves correct—but that’s a lawsuit for another day). The rest are looking for the most food for the least money, forcing price cuts and shaving profits. Such matters aren’t helped by the company’s ad missions in court that everyone knows this stuff can make you fat.

For the time being, McDonald’s lawyers are counting on the “common sense” of the court to reject plaintiff lawyer Samuel Hirsch’s charge that “young individuals are not in a position to make a choice after the on slaught of advertising and promotion.” Still, it is hardly unreasonable to believe that a corporation that is so ubiquitous and whose marketing budget is so enormous ought to be responsible for something. What is the purpose of all those commercials and cross-promotions and charities and supersized value meals if not to get people to eat more of the stuff? Yes, common sense may hold that, as the company’s lawyers put it, “people don’t go to bed thin and wake up obese.” But it is just as common sensical to conclude that marketers would not spend hundreds of millions of dollars trying to influence people unless they actually influenced them.

Likewise, it may be absurd to claim, as one plaintiff’s mother did, no knowledge of the risks to one’s waistline and one’s health of eating fast food. But isn’t it equally absurd to do everything possible to entice consumers to use your product and then blame them when you succeed? (And this industry has succeeded: The average consumer who eats fast food does so 16.4 times a month.)

Besides, if, as McDonald’s law yers argue, “every reasonable person understands” that eating burgers and fries can make you fat, how come there are rarely any chubby, let alone morbidly obese, people in fast-food ads? Is their absence a form of deception?

Which is all to say that if McDonald’s and its fellow fast-food firms believe common sense will save them from the litigious and the grasping, they should think again, because common sense cuts both ways.