Day 024 - 15 Sep 94 - Page 65


     
     1        So I do not know what relevance Mr. Horwitz felt was in
     2        his accusation that I was a vegetarian.  I can deny it,
     3        but I would -- that is just my own eating habits.  They
     4        are utterly irrelevant to my decisions in false
     5        advertising.  I took action against a group of
     6        right-to-life people who were running a phoney abortion
     7        clinic.
     8
     9   MR. JUSTICE BELL:  Well, do not worry .....
    10
    11   MS. STEEL:  I am not really sure whether this matters, so
    12        perhaps if I read it out and you can say whether there is
    13        any need to go into it. It is page 13 of the 18th July
    14        transcript.  I think this may have partly been covered in
    15        a letter as well.
    16
    17        Mr. Horwitz was asked, "Were there states in the United
    18        States which did not have effective labeling legislation
    19        in place at this time?"  He answered:  "Our focus at
    20        McDonald's at that time in terms of labeling with the
    21        labeling requirements of the Federal Government which we
    22        believed pre-empted any of the efforts of the state
    23        bodies, and it was our position at that time that that was
    24        controlled and that there were no state regulations and
    25        rules which effectively could compel us to label".
    26
    27        I am aware that Mr. Gardner disagrees with that, so is
    28        that something that I should ask him to comment on?
    29
    30   MR. JUSTICE BELL:  I would have thought he has dealt with it
    31        because he expressed his view of the state as well as the
    32        federal provisions earlier in his evidence.  I think what
    33        Mr. Horwitz was saying was that it was a matter for
    34        federal enforcement rather than state enforcement.
    35
    36   MS. STEEL:   Right.  Are you clear that he disagrees with that
    37        then?
    38
    39   MR. JUSTICE BELL:  Yes, I am clear that Mr. Gardner disagreed
    40        with it.  I think there may have been a suggestion, but I
    41        cannot now recall, in Mr. Horwitz' evidence that any rules
    42        against labelling made by a State legislator would be
    43        ultra vires because they were not matters of particular
    44        interest within the State as opposed to throughout the
    45        United States as a whole.
    46
    47   THE WITNESS:  Yes, your Lordship.  I did read that, and he is
    48        incorrect.  I have litigated that very point with the
    49        Kellog company.
    50 
    51   Q.   With the? 
    52        A.  The Kellog company, and won on the issue of the right 
    53        of the states to litigate health claims in food
    54        promotion.  But also both from public knowledge and
    55        because, as I said, I did hold designation as an official
    56        with the food and drug administration, the FDA, which is
    57        the chief enforcement arm at the federal level for the
    58        food and drug laws, has always publicly, and privately,
    59        taken the position that the States are not pre-empted.
    60        This is a position that McDonald's took and was not

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