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
