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

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