Day 025 - 16 Sep 94 - Page 23


     
     1        text did not include any reference to the regular
     2        hamburger, and that is again a true statement.  But that
     3        is because McDonald's instead chose to bring it to greater
     4        prominence by putting it in a chart that is going to catch
     5        the attention of the average consumer in a greater way.
     6
     7        This was, sir, in contrast to, on the first page of the
     8        advertisement, McDonald's stressing that the french fries
     9        were surprisingly low in cholesterol and saturated fat.
    10        As a matter of food and drug law, I cannot recall at the
    11        time -- we were not examining it as to food and drug law
    12        that would currently be a deceptive claim, because
    13        I believe you cannot refer to a product as low in fat
    14        unless it contains less than two, if two, grams of total
    15        fat.
    16
    17        The other problem with the first page of the advertisement
    18        is that, although McDonald's has stated the amount of
    19        saturated fat which is relatively low for a fried product,
    20        it did not state the total grams of fat which does have
    21        the tendency and capacity to people reading that sentence
    22        to deceive them.
    23
    24        In fact, the total grams of fat in the regular fries is
    25        12; and using that mathematical computation in my head,
    26        that would mean this product was just shy of 50 per cent
    27        calories from fat.  That also is a deception.   As I said
    28        yesterday, the examples we gave in the letters to
    29        McDonald's were stated I think at least twice to be
    30        exemplary and not limiting.  McDonald's has chosen to
    31        treat them as the only problems of mis-truth in these
    32        advertisements.  That is incorrect.
    33
    34   Q.   Suppose, Mr. Gardner, that I am an American consumer of
    35        average intelligence and that I want to know about the
    36        cholesterol content, I mean, the dietary cholesterol
    37        content, not the serum potential, the dietary cholesterol
    38        content of McDonald's food.  How am I going to be misled
    39        by this advertisement?  Just explain it to me, would you?
    40        A.  I do not believe that I testified, if I did I would
    41        correct myself, but I do not think there is anything
    42        deceptive in this advertisement regarding dietary
    43        cholesterol as opposed to serum cholesterol, which is
    44        where the saturated fat comes in.  The only claims
    45        regarding dietary cholesterol are contained in the chart
    46        which does disclose the amount of cholesterol per
    47        milligram, in milligrams, and in the first part.  There
    48        are numerous other sentences within this ad that I could
    49        also agree with you are not deceptive.
    50 
    51   Q.   Your complaint was (and I read it again) that this 
    52        advertisement emphasises, and you say it emphasises it 
    53        because it is actually contained in the chart in the top
    54        right-hand corner; is that right?
    55        A.  Yes.
    56
    57   Q.   The relatively low 29 milligram cholesterol content of the
    58        regular hamburger; why do you say it is relatively low as
    59        compared with the french fries upon which the
    60        advertisement concentrates?  The cholesterol content of

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