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
