Day 025 - 16 Sep 94 - Page 39
1 frequent and extremely illegal practice in the retail
2 industry, whether retail sell food or more often products,
3 for a company to advertise a product that is not in stock,
4 or to advertise a product as having certain features that
5 it does not have.
6
7 In almost every instance the consumer finds that out once
8 they have come to the store, but the deception lies in
9 using the bait advertisement that is false with the
10 potential to switch them once they get to the store. So
11 the fact that there is this information that is available
12 at the store, if the consumer learns of it, would not in
13 any way absolve them. In this instance as opposed to most
14 bait and switch advertising the switch does not occur by a
15 sales person at the retail establishment.
16
17 In other words, you do not finally learn the truth in the
18 greater percentage of instances when the sales person
19 says: "Oh, well, that is not necessarily correct what the
20 ad says; we have a better product here to sell to you".
21 In the greater run of things people, even with the
22 compromise we settle for, were not aware of the nutrition
23 brochures at all.
24
25 Q. I think I follow that, but my next question is this: Do
26 you not think that it might be rather difficult to make a
27 case against McDonald's that they dishonestly and
28 deliberately misstated information or suppressed relevant
29 information if the fact is, as each of these
30 advertisements tells us, that the customer is directed,
31 encouraged, to ask for a brochure which gives him all the
32 information?
33 A. Oh, I absolutely disagree with you Mr. Rampton. It is
34 a matter for instruction to the jury that they might not
35 consider the subsequent compliance if the person's
36 presence at the establishment was obtained through a false
37 misleading or deceptive practice. I would be more than
38 happy to do that, and I have prosecuted companies for just
39 that thing, for engaging in bait switch advertising.
40 I have always successfully prosecuted them.
41
42 Q. What do you understand by the word "lie", dishonest
43 falsehood, knowing falsehood, that sort of thing, "lie"?
44 A. That would be one definition that I would agree with.
45
46 Q. Saying something you know to be untrue when you say it,
47 would that be it?
48 A. Saying something that you know to be untrue or that
49 you know to contain half truths.
50
51 Q. I agree with that, that you can as easily distort the
52 truth by telling half as you can by deliberately
53 misstating the whole. Do you really think you could make
54 a case against somebody in this form? You lied about the
55 quality of your food, if in fact the person of whom you
56 make that accusation is actually inviting people to look
57 at the document that gives him the truth?
58 A. Do I think I could, yes, I think I could. Do I need
59 to, no, I do not. The standard for winning in court is
60 merely showing that the company published an advertisement
