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Attorneys downsize obesity suit against McDonald's

From Jonathan Wald

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NEW YORK (CNN) -- Lawyers attempting to prove that McDonald's food makes children fat have dropped a major part of their case.

In the suit against the fast-food chain, the plaintiffs' lawyers had claimed unknown ingredients and processing made foods such as french fries, Chicken McNuggets and Filet-O-Fish sandwiches damaging to consumers' health.

But after a federal court hearing Wednesday, Samuel Hirsch, the plaintiffs' lawyer, told CNN: "We're not saying that there aren't any dangers, but it's the more difficult part of the lawsuit to prove and one that we will let others pursue. We felt the stronger claim, and one that causes outrage, is deceptive advertising."

McDonald's attorney Brad Lerman urged U.S. District Judge Robert Sweet to dismiss the case and accused Hirsch of basing his allegations of false advertising on incomplete information and outdated material.

Lerman said Hirsch's lawsuit depended on nutritional brochures published in the United Kingdom and advertisements from 1987.

"It is clear that the plaintiffs not only didn't say they saw these advertisements, they couldn't have," said Lerman.

One of the plaintiffs wasn't born and the other was three years old when the 1987 advertisements were released.

Hirsch argued that at this stage of proceedings it would be sufficient to show that the plaintiffs' parents were influenced by the advertisements.

"You can't just allege something that's not true," Lerman told Judge Sweet. "The advertisements are true, on the face of it they're true."

In court papers Hirsch said customers are often sold "a wolf in sheep's clothing" when they buy food at McDonald's. "Where is the accuracy in advertising healthy and cholesterol-free French Fries when such products are highly processed with partially hydrogenated oils likely increasing heart disease? It's not truthful to advertise a product with unhealthy attributes as healthy, or to advertise a meat flavored potato product as vegetarian," wrote Hirsch.

Professor John Banzhaf, a consultant on Hirsch's lawsuit, is optimistic that Sweet will "give the kids their day in court."

"It's exciting to be a judge on a case which has so much public attention and could set a precedent," said Banzhaf. "He's planning to go on vacation for the summer so until he returns and until he gives a ruling on the case, McDonald's and the restaurant industry will remain with a sword of Damocles over their heads."

Outside the Manhattan courtroom, McDonald's lawyer Jerome N. Krulewitch insisted that "we are proud of our advertising and proud of our food."

"Common sense will prevail," said Krulewitch.

An earlier version of Hirsch's complaint was dismissed on January 22 by Sweet, who said the plaintiffs failed to show that McDonald's food was "dangerous in any way other than that which was open and obvious to a reasonable consumer."

Hirsch's suit seeks class-action status for "hundreds of thousands of New York state residents under the age of 18" who suffer health problems as a result of eating McDonald's food.

A McDonald's representative told CNN over 20 million people eat at McDonald's in the United States every day.

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