Day 025 - 16 Sep 94 - Page 53
1 violation of our food and drug laws.
2
3 Since then Congress has clarified that point, and this
4 type of claim, this ad, would not, in my opinion, be
5 permitted. The reason is twofold: (1) is that now a
6 claim that a product is an excellent provider of a
7 nutrient such as calcium, first, must only be made in an
8 instance where the product contributes -- I do not know
9 off top of my head -- approximately, I believe, 20 to 30
10 per cent of the daily reference value for that particular
11 nutrient. I would have to ask whether or not that was the
12 case with McDonald's. If so, then it would be appropriate
13 to provide it as an excellent source of calcium.
14
15 The second question then, now, rather, is whether a
16 product that has a beneficial nutrient also has
17 significant levels of adverse nutrients in them. It may
18 well be that because of the fact in these products these
19 claims would not now be permitted.
20
21 At the time of these advertisements, on the other hand,
22 the development of the usefulness of calcium in the body
23 and of how it should be promoted was a developing one, and
24 in that one regard, although probably this ad at the time
25 was illegal because it failed to make the disclosure that
26 it was -- if this is true -- a high fat product, it is not
27 the type of ad that our office would have taken
28 enforcement action against; nor was it one that we did
29 base our decision to threaten enforcement action against
30 McDonald's in April 1987 on.
31
32 So, if you are asking me if it was a deceptive ad, in a
33 very narrow and technical sense of the word, yes. If you
34 are asking me would we have taken action against them, the
35 answer is, no.
36
37 Q. But I do not understand the answer, you see, Mr. Gardner.
38 Leaving aside the three advertisements to which you took
39 specific exception, I had understood the thrust of your
40 complaint about the advertising campaign as a whole to be
41 this, that besides promoting the beneficial qualities of
42 McDonald's food, the campaign was deceptive because it
43 omitted to state how dangerous the food was as well. Is
44 that not right?
45 A. I would not say "dangerous" in that instance, and we
46 did not, as to the calcium ad, reach that determination.
47 Now, if we are talking about the calcium ad, I will talk
48 about it, if you are talking about the campaign as a
49 whole, I will talk about that, but if you could let me
50 know which one you are speaking of, I could answer more
51 clearly.
52
53 Q. You see, I find it difficult to see a distinction. Here
54 we have a one sheet advertisement promoting various
55 McDonald's products as being beneficial to health because
56 of the calcium that they contain. This particular piece
57 of paper does not state what disadvantageous or harmful
58 substances those particular products might also contain.
59 Therefore, as I understand your canon or standard of
60 judgment, this is a deceptive advertisement; is that
