Where's the injury?

That's the question the media should have been asking Tuesday when the Center for Science in the Public Interest (CSPI) announced a class action lawsuit against KFC for using partially hydrogenated oil, which contains trans fat, to cook its fried chicken, French fries, and other foods.

CSPI is seeking damages for a Maryland doctor and "all other persons who purchased any food item at a KFC restaurant in the District of Columbia that was prepared with products containing trans fat" at any time over the past three years. 

The group also wants the court to order KFC to stop using trans fats in preparing its food, or to warn consumers, "immediately prior to purchasing any food prepared using trans fat, that the food is prepared with trans fat products."  In fact, CSPI said in its press release that the court could require KFC to post "signs in restaurants that say 'KFC's fried chicken and certain other foods contain trans fat, which promotes heart disease"'" in order "to protect the consumer from known dangers."

Okay, we get it, CSPI thinks trans fat is bad -- and thinks everyone else should think so, too.  And, yes, the lawsuit was inflammatory and designed to make national headlines -- which it did -- but where's the injury?

For as long as anyone can remember, the very first rule of filing a lawsuit is that the plaintiff actually has to be injured in some way.  Moreover, the lawsuit has to be brought against someone who caused or contributed to that injury.  Most of the time both the harm and the perpetrator are pretty obvious, as many of us know if we have ever been involved in a personal injury lawsuit arising from, say, a car accident.  But sometimes either the injury or the person who caused the injury is more elusive, as in the case of a stock shareholders' lawsuit against the corporate board for mismanagement of the company.  In each case, however, the plaintiff has a real identifiable injury and can point to a defendant who caused that injury.

Indeed, among all of the other legal problems with the CSPI lawsuit against KFC, this is its most simple and obvious problem: there is no injury alleged.  In spite of a 14-page-long complaint, nowhere does the CSPI lawsuit allege injury to anyone -- including the named Maryland doctor.  There are lots of "facts about trans fat" and that "the only safe level of trans fat in the diet is zero."  But there is no allegation that any of the plaintiffs, named or unnamed, suffered a real identifiable or quantifiable injury -- not even an assertion that they gained a few pounds.

Instead, the closest the CSPI lawsuit ever comes to alleging an injury is when the named plaintiff, a Maryland doctor, claims that "he was unaware that [KFC] products had been prepared with trans fat" and that "he was trying to avoid consuming products that contained trans fat."  Moreover, in the CSPI press release, the doctor admits that even if he was warned, he just might have chosen to eat at KFC anyway.  "I would have reconsidered my choices," the doctor equivocally stated.  In other words, the good doctor -- and the rest of the unnamed plaintiffs -- claims KFC should have warned him before he took his first bite, even if he might have decided to eat the same thing anyway.

Most of us understand that such a claim is utterly ridiculous, but for those who don't, they should think about how CSPI was able to specifically note in the complaint how much trans fat is contained in certain KFC foods.  CSPI almost certainly obtained this information from KFC, itself. 

Like many restaurant chains, KFC has a detailed nutrition section of its website where consumers can build their own meal and see how much trans fat, total fat, saturated fat, cholesterol, sodium, carbohydrates, dietary fiber, sugars, protein, and other nutrients each item of their meal contains.  This same nutritional information is available for the asking at each KFC restaurant, as well.  As KFC commented in response to the lawsuit: "We provide a variety of menu choices and provide nutrition information, including trans fat values, on our website and in our restaurants so consumers can make informed choices before they purchase our products."

So, it's not that the named plaintiff, a Maryland doctor, or the unnamed plaintiffs didn't know about the trans fat, it was that they didn't want to know.  After all, they could have asked at any time; they just never did.  And, back to that original question, the injury here isn't to any of the plaintiffs.  It's to legal common sense just as it increasingly is when plaintiffs seek damages based on an imaginary injury caused by their own stupidity.