Day 025 - 16 Sep 94 - Page 54


     
     1        right?
     2        A.  As I said to you earlier, in a strict sense, it is a
     3        deceptive advertisement.  However, one of the criteria
     4        that we must review before instituting legal action is
     5        whether to do so would be in the public interest.  This
     6        particular advertisement, focuses on getting calcium and a
     7        way you can get calcium.  That distinguishes it from the
     8        other advertisements in this campaign that focused on
     9        products that were themselves not nutritious, that
    10        themselves provided no nutritional benefit of any
    11        significance.
    12
    13        Although certainly you can get protein from eating a
    14        hamburger, there are better sources of protein from a
    15        hamburger as made up at McDonald's.  Here you have a piece
    16        of bread that is a relatively innocuous food product that,
    17        according to McDonald's, has been fortified with calcium.
    18        On balance, that is not the type of case that we would
    19        take action against.
    20
    21        That is why we said the campaign as a whole was deceptive
    22        and not every word in every page in the campaign.  It was
    23        enough for us that McDonald's gave us its assurances that
    24        the campaign had been modified and was not to be
    25        recontinued in its current form.  Had we seen -- I do not
    26        recall whether or not the significantly modified campaign
    27        as reflected in that December 2, 1987 memorandum you had
    28        me refer to earlier, I do not recall if that was brought
    29        to our attention.  Had it been, I do not think we would
    30        have taken action because that was not the same campaign.
    31        It was not the same ad.  This ad, perforce, the Eat your
    32        Calcium ad, the first page of this two page ad, was not
    33        the identical ad to the one page version of it.
    34
    35   Q.   That may be so.
    36        A.  Because it says "turn the page", so I know something
    37        must have been modified.
    38
    39   Q.   That may be so.  I was asking your opinion about the
    40        effect of that particular page of advertisement.  Imagine,
    41        if you will, that it was an advertisement for a hamburger
    42        and not for a bun and that it said:  "McDonald's
    43        hamburgers are very nutritious.  They are good food.  They
    44        contain quantities of easily assimilated protein,
    45        essential vitamins and minerals", would have been
    46        objectionable?
    47        A.  Probably so; I would have to see the advertisement.
    48        I cannot tell you, absencing the visual layout, the way
    49        the copy reads, exactly what would have been determined.
    50 
    51   Q.   Finally, on this topic, I put this because it is my case 
    52        and, therefore, you are entitled to hear what it is on 
    53        this topic:  There is no basis on which a fair-minded
    54        person, let alone a trained lawyer, could reasonably
    55        conclude that McDonald's terminated its 1987 campaign
    56        because of your intervention, is there?
    57        A.  Yes.  I believe myself to be both fair-minded and
    58        educated.  All I can tell you is, reading it now,
    59        I believe that to be the case.  At the time we certainly
    60        believed that to be the case based on what McDonald's told

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