Day 025 - 16 Sep 94 - Page 20


     
     1        A.  No, sir.
     2
     3   Q.   Unless McDonald's put into this advertisement:  "Take care
     4        of this food; it may damage your health", it is always
     5        going to be deceptive; is that right?
     6        A.  Not at all.  I would point out McDonald's have many
     7        advertisements and television commercials that had aired
     8        prior to these and after these.  These are the only ones
     9        we took issue with.  We are not trying to prevent
    10        McDonald's from persuading people to come to their place
    11        of business to eat the food.  That is a matter of free
    12        choice.  But, in our marketplace, in our economy, it is
    13        necessary for consumers, in order to be a fully
    14        functioning part of that marketplace, to make their
    15        purchasing decisions based on all the facts that are
    16        relevant to that decision.
    17
    18        That is why, in part, our consumer protection laws outlaw,
    19        make illegal, material non-disclosures of fact.  If
    20        consumers are told only the good but none of the bad about
    21        the product, then they are going to be misled and they
    22        will go to one business rather than a competitor.  If the
    23        competitor offers a better product, but does not engage in
    24        deceptive advertising, that competitor will lose
    25        business.  Our capitalist system of economy will not
    26        function right.
    27
    28        We must have truth in the marketplace and accuracy in the
    29        marketplace and, in fact, a free flow of information in
    30        the marketplace.  What ads like these from McDonald's do
    31        is to clog up the arteries of the marketplace to convey
    32        half truths or mis-truths to the individuals in order to
    33        get them to come to McDonald's rather than coming to
    34        Burger King.  This is largely a matter of protecting, as
    35        well as consumers, protecting the competition that do not
    36        engage in deceptive advertising.
    37
    38   Q.   Talking about "clogging up the arteries", Mr. Gardner,
    39        could you turn on to the advertisement -- I am afraid
    40        I cannot give you a page number. My Lord, it is page 114.
    41
    42   MR. JUSTICE BELL:  If we are leaving that for the time being,
    43        can I know, Mr. Rampton, what in the States "a serving"
    44        means, what in the American language "a serving" means?
    45
    46   MR. RAMPTON:  You will have to ask the witness.
    47
    48   MR. JUSTICE BELL:  I was leading you to.  What would four
    49        servings in fruits and vegetables mean?  Four serving
    50        spoonfuls or eating it four times a day? 
    51        A.  It, in general, means what it says.  As a common 
    52        sense, if you were to eat an apple, I believe an apple 
    53        would be one serving; not a slice of an apple.  I could
    54        not tell the court what a serving of lettuce would be.  I
    55        do not know the quantity.  Our food and drug
    56        administration has set forth for nutrition disclosure, not
    57        recommended, but absolute serving sizes.  They had to do
    58        that because the food industry was artificially
    59        manipulating the serving sizes in order to keep the
    60        disclosed values of the negative nutrients below a certain

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