Day 024 - 15 Sep 94 - Page 50


     
     1        Ms. Steel wants to ask you, is to what extent, if at all,
     2        as the writer of that letter comes to the three matters
     3        which you have raised, you disagree with his answer, do
     4        you see?
     5        A.  Yes, your Lordship.  I would be happy to address
     6        that.  That would be, I think, the only thing I would care
     7        to add, but I need to refer to my letter because I frankly
     8        do not trust McDonald's recounting of it.
     9
    10   MS. STEEL:   Have you got your letter?
    11        A.  Yes, I do.  I justly do not trust it.  On page 159
    12        McDonald's says that we object to the statement that
    13        sodium is down across the menu on the grounds that sodium
    14        is not down on all of McDonald's products.  In Exhibit 7
    15        to my statement I did not say that or, in fact, this was
    16        Attorney General Mattox did not say that; we merely said
    17        that the statement that sodium was down across the menu
    18        was not true.  McDonald's response was to defend one
    19        untrue statement with another untrue statement.  They
    20        mischaracterised what we had written to them in an attempt
    21        to defend what they had told the American public, in other
    22        words, it is not true what is recited in there that we
    23        gave as grounds for our objection that sodium was not down
    24        on all of their products.
    25
    26        As I have told the court, we presumed that, in fact, it
    27        was down in the pickles and in the sausage, but it was
    28        down to an insignificant degree, if at all, in most of
    29        their products and because the statement "down across the
    30        menu" does not necessarily mean every item, but it does
    31        mean all, virtually every item across the menu; not
    32        hopping and skipping across the menu board blanding 2, 3,
    33        4, 5 times and then getting on, off of the menu.
    34
    35        There are some consumers who would reasonably interpret
    36        "across the menu" to mean all of the products.  In a
    37        corollary situation, when I was with the New York Attorney
    38        General's office, we investigated and prosecuted a number
    39        of soft drink manufacturers for promoting their products
    40        when they had added NutraSweet to them, to the diet
    41        products as now with NutraSweet, when they still had a
    42        greater proportion of saccharine in the product.  The
    43        problem there was that saying "now with NutraSweet"
    44        conveyed to the public, and in that case we had the
    45        company's own survey data and competitive data to back us
    46        up, conveyed that "now with NutraSweet" meant no longer
    47        with saccharine.  Here in similar vein, although we do not
    48        have consumer perception data, it is my conclusion that
    49        saying that sodium was down across menu was intended to
    50        convey, and did convey, the consumer perception that all 
    51        or virtually all of the products had had their sodium 
    52        reduced.  The truth and was significantly to the contrary. 
    53
    54   Q.   If we can move on to the milk shake advertisement.  I do
    55        not know if there is anything you want to say?
    56        A.  Yes.  Looking first at the ads, the ads says: "Milk
    57        and what else?  Glad you asked.  No artificial
    58        preservatives for starters".  Then it goes on to list what
    59        it does say is in there.  Although McDonald's takes the
    60        position that sodium hetametaphosphate is a stabilizer,

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