Day 024 - 15 Sep 94 - Page 51


     
     1        not a preservative, it does not deny that it is a chemical
     2        that has been added to the product.  I believe it can also
     3        be considered a preservative because of the action it
     4        has.
     5
     6        I do not truly care (and did not at the time care) whether
     7        it was a chemical stabilizer or a chemical preservative.
     8        They were hiding the ball on both of these chemicals being
     9        present in the product.  They admit that there is a
    10        chemical preservative, sodium benzoate, in their letter.
    11        I believe Mr. Horwitz's testimony confirmed that.  The
    12        letter says our objections are unfounded.  That is how the
    13        paragraph starts out.  Then they go on, having said that
    14        the objections were unfounded, to admit the objections
    15        were, in fact, founded although in so indirect a manner as
    16        to be not immediately apparent.
    17
    18        One of our allegations was that the statement that there
    19        was nothing in it except these items, and for that matter,
    20        as I said, this was only a few of the problems with this
    21        ad, the fact that they say no artificial preservatives
    22        when the product, by their own admission, contained an
    23        artificial preservative says to me that that ad is
    24        deceptive.  It also says that it was more than a small
    25        error on McDonald's part, as they have chosen to portray
    26        it, that they had neglected to mention the preservative.
    27        They chose to make an affirmative claim to the public that
    28        there was no artificial preservatives in there; there was,
    29        sodium benzoate, and they admit to it.  That ad was for
    30        that reason false and deceptive and, therefore, in
    31        violation of our law.
    32
    33   Q.   To someone who is concerned not to eat or drink things
    34        with artificial preservatives in, do you think it would
    35        make any difference to them whether the preservative was
    36        in the flavouring or in the shake itself?  Do you think
    37        they would say:  "Oh, I will drink that after all because
    38        it is only in the flavouring"?
    39        A.  That is not a difference, in fact, because the
    40        flavouring is in the shake itself, so the shake has
    41        artificial flavouring, chemical flavouring in it, or
    42        chemical preservative, rather, in it.  Whether it is part
    43        of the flavouring is just a characterisation by
    44        McDonald's, that is a distinction with no difference
    45        whatsoever.  Nor would it make it a difference to anyone
    46        who wanted to avoid anything other than natural
    47        ingredients, whether sodium hetametaphosphate is
    48        classified by McDonald's as a chemical stabilizer or a
    49        chemical preservative.  The purpose is to avoid artificial
    50        chemicals in your products, and one of them, McDonald's, 
    51        admits that it was wrong and the other one were playing 
    52        name games, but the simple fact is they did not disclose 
    53        the chemical stabilizers were in there.
    54
    55   Q.   If we move on to the cholesterol ad (which is on page 115)
    56        what would you want to answer, what would you want to say
    57        in answer to what they stated in the letter?
    58        A.  I would have to go on to the next paragraph.  The
    59        second paragraph generally responds or paraphrases in a
    60        rather belittling way the conclusions reached in our

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