Day 024 - 15 Sep 94 - Page 43


     
     1
     2   MR. MORRIS:  It is helpful.  His exhibits, the actual page
     3        numbers are not mentioned, whereas in the bundles we have
     4        the helpful page numbers so at least we all know what we
     5        are looking at.
     6
     7   MR. JUSTICE BELL:  What I am suggesting is if Mr. Gardner has
     8        page 2 of his Exhibit 7, which is the letter of
     9        24th April  ---
    10
    11   THE WITNESS:  I do, your Lordship.
    12
    13   MR. JUSTICE BELL:  -- by his right hand, then you can start, if
    14        you like, you started with balance.  You can refer him to
    15        any other pages you like, but it would probably help me if
    16        when you get to the individual ads, you start with salt
    17        because that is (1), go to real milk because that is (2)
    18        and then cholesterol because that is (3).  If you want him
    19        to add anything to what is in (1), (2) or (3), by all
    20        means ask him, but otherwise I can read what is in (1),
    21        I can read what is in (2) and I can read what is in (3).
    22        You do it your own way though.  Do you understand what
    23        I am suggesting?
    24
    25   MS. STEEL:   Yes, that is OK.
    26
    27   MR. JUSTICE BELL:  Because then I can relate it to a document,
    28        namely, page 2 of that letter.
    29
    30   MS. STEEL:   OK, going through the letter then.
    31
    32   MR. MORRIS:  We are looking at it in the bundle now, yes.
    33
    34   MS. STEEL:   It is 107 we actually want to look at.  Looking at
    35        your letter and at the advertisement, could you just run
    36        through what was the problem with this advertisement?
    37        A.  I will return to it, but I would point out first that
    38        these three examples were introduced and were concluded by
    39        stating that they were examples only, and that there were
    40        other problems in specific.  But in this one the "Less
    41        than a pinch" ad, beginning at page 106, the problem in
    42        general was that, from what we could tell from this
    43        document as well as from our reference to other
    44        nutritional information regarding McDonald's food -- we
    45        had their brochure handy and we could use it -- we had
    46        concluded that that advertisement specifically violated
    47        Texas law by saying that sodium was down across the menu.
    48
    49   Q.   What impression do you think that would give to consumers?
    50        A.  That by and large the sodium across the menu and not 
    51        as to one or two or even five items in the menu had been 
    52        lowered; that there might be some items where it had not 
    53        been lowered but, as a general rule, there was less sodium
    54        in McDonald's food line than there had been previously.
    55        Because, in fact, it was not so lowered, we deemed that
    56        statement to be false and deceptive and, therefore, in
    57        violation of the Texas Deceptive Trade Practices Act.
    58
    59        It was necessary, of course, for us to reach a
    60        determination as to whether or not an ad was false,

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