978-1285770178 Case Printout Case CPC-24-03

808 N.E.2d 1

Page 1

347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

Appellate Court of Illinois,

percent

First District, Fifth Division.

value

Marc S. COHEN, and similarly situated parties, Plaintiff-Appellant,

McDONALD’S CORPORATION, and its Franchisees, and McDonald’s

Restaurants of

calcium

Justice REID delivered the opinion of the court:

The appellant, Marc S. Cohen, appeals from the trial court’s order that

calories

dismissed his class action lawsuit for consumer fraud and deceptive

business practices and common law fraud against defendants

McDonald’s Corporation and its Franchisees, and McDonald’s

Restaurants of Illinois (McDonald’s). Cohen’s complaint alleged that

fat.

Count I

sufficiently stated a cause of action. For the reasons that follow, we

affirm the decision of the trial court.

BACKGROUND

On February 5, 2002, Cohen filed a two-count class action lawsuit

against McDonald’s for: (1) consumer fraud and deceptive business

practices and (2) common law fraud. His complaint alleges that one of

the food products that McDonald’s sells is the Happy Meal®. A Happy

In 1995 McDonald’s began making nutritional information for its food

s

ages one to three. As part of this marketing strategy, McDonald’s

entered into an agreement with Fisher-Price. The agreement provided

distributed with the Happy Meal®.

products available to its customers in the following ways: (1) displaying

documents known as “McDonald’s Nutrition Facts” on posters and signs

Illinois

The McDonald’s Nutrition Facts document lists each individual food item

that the restaurant serves. It does not list the Happy Meal®. The

mer

document then lists certain information about the menu items, such as

the serving size of and number of calories in each item and the daily

Fraud

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

Deceptive Business Practices Act (815 ILCS 505/2 (West 2002) (the

Act)). Section 2 of the Act states:

“Unfair methods of competition and unfair or deceptive acts or practices,

including but not limited to the use or employment of any deception,

fraud, false pretense, false promise, misrepresentation or the

or damaged thereby. In construing this section consideration shall be

given to the interpretations of the Federal Trade Commission and the

federal courts relating to Section 5(a) of the Federal Trade Commission

Act.” 815 ILCS 505/2 (West 2002).

Additionally, McDonald’s contended that the congressional grant of

authority and extensive FDA regulations regarding labeling also impliedly

preempt Cohen’s claims. Alternatively, McDonald’s **5 ***455 argued

that Cohen’s cause of action should be dismissed under the doctrine of

experti

se’ in

brandin

g and

labeling

motion

to

dismiss

,

ald’s

argued

that all

restaur

808 N.E.2d 1

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

are generally exempt from making any nutritional declarations.

McDonald’s argued that the regulations that are the source of Cohen’s

[8][9] “Section 2-619(a)(1) provides for a dismissal when ‘the court does

not have jurisdiction of the subject matter of the action.’ 735 ILCS 5/2–

619(a)(1)(West 2002). The presence or absence of subject matter

jurisdiction is determined from the nature of the case and the relief

sought.

Kemlin

except

(1)

cases

over

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

which the federal courts have exclusive jurisdiction (The Moses Taylor v.

Hammons, 71 U.S. (4 *633 Wall.) 411, 416, 18 L.Ed. 397 (1867) (the

judicial power of the federal government is exclusive in some cases and,

inference that Congress left no room for the states to supplement it or

where a federal statute touches a subject or an object in which the

federal interest is so dominant that the federal system will be assumed to

preclud

e the

enforce

Congre

ss has

not

808 N.E.2d 1

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

completely displaced state regulation of a specific subject or object, state

law is nullified to the extent that it actually conflicts with federal law.

Kellerman, 112 Ill.2d at 438-39 [98 Ill.Dec. 24], 493 N.E.2d at 1049;

Fidelity Federal Savings & Loan Ass’n v. **7 ***457 de la Cuesta, 458

nutrition information for the foods they serve. Yet, Cohen argues that this

exemption does not defeat his cause of action and relies on 21 C.F.R. ß

101.9(j)

(2)(i)

(2003),

which

food

bears

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

label or in labeling or advertising. Claims or other nutrition information

subject the food to the provisions of this section.” (Emphasis in

original.)

Relying on this regulation, Cohen contends that because McDonald’s

commerce that are not identical to those prescribed in the NLEA. Indeed,

l

Busine

ss Law

ß

ants’

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

alleged misconduct was not violative of the Federal standards set forth in

seek, directly or indirectly, to impose liability for conduct sanctioned by

the NLEA. That plaintiffs’ remedial objectives are entirely consistent with

the NLEA does not, however, render their action one to enforce the

NLEA per se, which kind of action may only be instituted by the Federal

remedy for injuries caused by knowingly deceptive and misleading

business ***459 practices where, as here, such remedy in no way

interferes with the Federal prerogative to promulgate and enforce uniform

maintains that the Act would provide the basis for his recovery while the

NLEA would provide the standard by which McDonald’s nutritional

information is to be measured. Cohen claims that if McDonald’s can

demonstrate that it complied with the NLEA, then it would defeat

action is in fact preempted. In this matter, Cohen contends that all this

court would do is look to the NLEA for guidance to determine if

McDonald’s has committed common law fraud or committed a violation of

the Act. If what Cohen were demanding from this court were that simple,

inter alia, that labeling for foods that are intended for children under the

age of four shall not include declarations of daily percent for such things

as total fat, saturated fat and sodium.

We

y note

that the

McDon

ald’s

referen

ce to its

Happy

strong

reserva

tions

about

french

fries

and

hambur

n under

the age

of four.

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347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451

(Cite as: 347 Ill.App.3d 627, 808 N.E.2d 1, 283 Ill.Dec. 451)

However, supposing for the sake of this discussion that the items that

appear on the McDonald’s Nutrition Facts document are indeed intended

for children under the age of four, then the document violates this

regulation because the daily percent values for these categories appear

foods intended for children under the age of four and consequently has

not established a regulatory scheme for how these things should be

reported on labeling. To solve this dilemma, Cohen would have this

court place labeling requirements **10 ***460 on restaurants that provide

nonuniformity amongst the different states. In this matter, ultimately,

what Cohen is asking this state court to do is to interpret a federal

statute. We do not have the authority to do so and will not. As such, this

cause of action is preempted, and the trial court’s decision to dismiss

Affirmed.