Hungry? If you grab a new Hardee's Monster Thickburger, you won't be. The burger, which is 2.5 inches thick, packs 1,420 calories and 107 grams of fat. It contains two 1/3-pound slabs of all-Angus beef, four strips of bacon, three slices of cheese and mayonnaise on a buttered sesame-seed bun. Jay Leno joked that the burger "actually comes in a little cardboard box shaped like a coffin." The Center for Science in the Public Interest called the Thickburgers "food porn ... the fast-food equivalent of a snuff film. At a time of rampant heart disease and obesity, it is the height of corporate irresponsibility for a major chain to peddle a 1,420-calorie sandwich."
Hardee's is loving the publicity. While Subway touts itself as a health haven and uses vegetables as the background for its Web site, Hardee's is gloating about its skyrocketing sales. "We want Hardee's to be known as the place for big, juicy, decadent burgers," CKE Restaurants Inc. president and CEO Andy Puzder says. "Every time (comics or critics) come out with something, it helps us advance the impression of the brand."
While Hardee's is licking its chops looking at its sales slips, tort lawyers all over the country must be drooling on their briefcases. Even though Hardee's isn't hiding the content of its artery-hardening product, courts in certain states could still find that people suffering medical difficulties as a result of eating the Thickburger have a legitimate cause of action. A rogue court could theoretically call the Hardee's Thickburger "design defective" and hold Hardee's liable for damages incurred by the moron who voluntarily swallows 100 of them over the course of a month.
Michael Jacobson of the Center for Science in the Public Interest seems to be paving the way for a claim of product defect due to inadequate instructions or warnings. He told MSNBC that "If Hardee's persists in marketing this junk, it should at least list calories right up on the menu board." The idea here is that if a fast-food company provides inadequate warning to consumers of the dangers inherent in the product, they may be held liable for later damages incurred by use of the product.
Neither of these claims looks to be particularly strong legally. The design-defect claim assumes that consumer expectation does not encompass the fattening aspects of fast food; the inadequate-warning claim rests on the foundation that people are too dumb to realize that burgers make you fat. But then again, the legal culture has generally enshrined those "brave" plaintiff's lawyers and judges who are able to generate new, fertile ground for lawsuits.