Day 025 - 16 Sep 94 - Page 32


     
     1        "calculated", is a word with two meanings, is it not?
     2        A.  Under our Act, it is a word with a meaning.
     3
     4   Q.   Tell me what ----?
     5        A.  Sorry?
     6
     7   Q.   Tell us what the meaning is.
     8        A.  It is construed by the courts to mean something other
     9        than deliberate falsehood.
    10
    11   MR. JUSTICE BELL:  You use it as an alternative to "falsely" in
    12        the second page, "falsely" or "deceptively"?
    13        A.  Yes.  I cannot distinguish between "misleading" and
    14        "deceptive".  There may be some instance of a
    15        representation that was not deceptive, that was
    16        misleading.  I do not know of any.  I think, with all due
    17        credit to our legislature, that was probably excess
    18        verbiage.
    19
    20        There is a distinction, as I previously testified, between
    21        false representations and deceptive representations.
    22        There may be deceptive representations that are not
    23        false.  I cannot imagine a false representation that was
    24        not also deceptive.  So if, Mr. Rampton, you want to say
    25        "false" and "misleading" with the knowledge that
    26        "misleading" to me is identical to deceptive, you may do
    27        so, but, for the purposes of my testimony and my
    28        examination, what I look at is whether the advertisement
    29        is false or relatively grouped together misleading and
    30        deceptive.  So if you are trying to draw a distinction
    31        between "misleading" and "deceptive", I cannot do that.
    32
    33   Q.   I am only concerned to know this, Mr. Gardner.  What was
    34        and is the nature of the allegation which you made against
    35        McDonald's in relation to this cholesterol advertisement?
    36        I want to know whether you say it is merely inaccurate or
    37        whether you say McDonald's set out to mislead the public
    38        by including it in the series?
    39        A.  With respect to that particular instance, I do not
    40        have an opinion one way or the other as to whether or not
    41        that specific omission by McDonald's was an intentional
    42        and deliberate act to deceive the public as part of its
    43        overall nutrition campaign.
    44
    45        It is probative of McDonald's intent to deceive the public
    46        through the campaign, which is what the letter alleges,
    47        that McDonald's chose to omit some of the facts relating
    48        to cholesterol as to that specific product and chose to
    49        include the positive facts.
    50 
    51   Q.   Yes.  Do you assert that when McDonald's launched this 
    52        campaign they knew that it was false to assert (if, 
    53        indeed, this campaign does assert, which is another
    54        question) that their food is nutritious?
    55        A.  Yes, I would say so.  False and deceptive but false,
    56        yes.
    57
    58   Q.   If you look back in time at page 184 in tab 36 of this
    59        bundle, it is forward in the bundle but backwards in time
    60        by over a year?

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