Day 025 - 16 Sep 94 - Page 32
1 "calculated", is a word with two meanings, is it not?
2 A. Under our Act, it is a word with a meaning.
3
4 Q. Tell me what ----?
5 A. Sorry?
6
7 Q. Tell us what the meaning is.
8 A. It is construed by the courts to mean something other
9 than deliberate falsehood.
10
11 MR. JUSTICE BELL: You use it as an alternative to "falsely" in
12 the second page, "falsely" or "deceptively"?
13 A. Yes. I cannot distinguish between "misleading" and
14 "deceptive". There may be some instance of a
15 representation that was not deceptive, that was
16 misleading. I do not know of any. I think, with all due
17 credit to our legislature, that was probably excess
18 verbiage.
19
20 There is a distinction, as I previously testified, between
21 false representations and deceptive representations.
22 There may be deceptive representations that are not
23 false. I cannot imagine a false representation that was
24 not also deceptive. So if, Mr. Rampton, you want to say
25 "false" and "misleading" with the knowledge that
26 "misleading" to me is identical to deceptive, you may do
27 so, but, for the purposes of my testimony and my
28 examination, what I look at is whether the advertisement
29 is false or relatively grouped together misleading and
30 deceptive. So if you are trying to draw a distinction
31 between "misleading" and "deceptive", I cannot do that.
32
33 Q. I am only concerned to know this, Mr. Gardner. What was
34 and is the nature of the allegation which you made against
35 McDonald's in relation to this cholesterol advertisement?
36 I want to know whether you say it is merely inaccurate or
37 whether you say McDonald's set out to mislead the public
38 by including it in the series?
39 A. With respect to that particular instance, I do not
40 have an opinion one way or the other as to whether or not
41 that specific omission by McDonald's was an intentional
42 and deliberate act to deceive the public as part of its
43 overall nutrition campaign.
44
45 It is probative of McDonald's intent to deceive the public
46 through the campaign, which is what the letter alleges,
47 that McDonald's chose to omit some of the facts relating
48 to cholesterol as to that specific product and chose to
49 include the positive facts.
50
51 Q. Yes. Do you assert that when McDonald's launched this
52 campaign they knew that it was false to assert (if,
53 indeed, this campaign does assert, which is another
54 question) that their food is nutritious?
55 A. Yes, I would say so. False and deceptive but false,
56 yes.
57
58 Q. If you look back in time at page 184 in tab 36 of this
59 bundle, it is forward in the bundle but backwards in time
60 by over a year?
