Creative Capitalism

My favorite news story last week was, of course, the McDonald's end-around. It's an inspiration for creativity and, in an odd sort of way, a political lesson.

It may make sense not to do anything.

In case you missed it, San Francisco enacted an ordinance banning toy giveaways with meals that don't meet nutritional standards. Happy Meals were supposed to be less happy.

So McDonald's (followed by Burger King) complied with the law by charging a dime for the toys if purchased with a kids' meal.

There are some who think this was a stroke of genius on the part of McDonald's, but is it really? Do you have to consult a lawyer to come up with the idea of charging for something so it's not free?

I don't think they taught that in law school. If they did, I missed the course. Maybe I should have signed up for the Avoiding Legislative Intent course.

This is the kind of story that makes me want to come up with alternatives - for both the fast food persons (remember - corporations are people) and lawmakers. Good lawyering, after all, is all about creativity. What else could have been done here?

McDonald's, after all, may seem like a Libertarian hero by striking a blow for our right to have fat children, but there are other things they could have been done.

For example, they could have charged four dollars for the toy and thrown in a meal with each purchase. Then they wouldn't have had to raise their prices and they could have been a hero for fighting inflation too.

There's a nutritional plus to that method too. You don't have to eat the meal if all you want is the toy.

Yes, I know you're thinking you don't have to eat the meal if you pay for it either. But, come on. You paid for it.

There's another less obvious but, I think, more devious alternative. McDonald's could have started selling Happy Meals with apples and broccoli.

I know that sounds insane. I know that sounds like the end of capitalism as we know it - but nothing could be further from the truth.

Here's what happens: to get the toy, you have to buy your kid something healthy. He or she scrunches up his or her nose. There is tension in the air.

And then comes the inevitable question: "Do you want fries with that?"

Of course you do!

Now McDonald's has sold you a Happy Meal and extra fries. Maybe even an extra burger. It's a bonanza for shareholders.

This is a missed corporate opportunity.

So what should lawmakers have done?

Nothing. There's always going to be someone figuring a way to get around rules. Legislators should save themselves from the stress.

Which brings us to the political lesson. I'm still getting solicitations from the No Labels organization imploring me to stand for nothing aside from not arguing with anyone.

Maybe this is their point: doing stuff doesn't help anyway. You might as well wait for the lawsuits to start pouring in.

I mean that literally.

If you pass laws - say, for example, handicapped access or environmental regulations - you get lawsuits.

If you don't pass laws, you get lawsuits from people falling down and choking.

If you restrict class actions, you get mobs of individual plaintiffs.

If you restrict banking fees, banks come up with other charges.

And then there's the tax code. Need I say more?

This is what creativity and capitalism are all about.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit