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
