Ms Steel had been expected to begin day 296 on the subject of advertising but instead announced to the court that she would be covering Nutrition first. She began by stating that "during the course of this trial the evidence that has emerged overwhelmingly supports our case"
"First and foremost we have the admission in McDonald's UK publication 'Good Food, Nutrition and McDonald's' produced in 1985 that 'there is a considerable amount of evidence to suggest that many of the diseases which are more common in the western, affluent world - diseases such as obesity, diabetes, high blood pressure, heart disease, stroke and some forms of cancer - are related to diet. The typical western diet is relatively low in dietary fibre (roughage) and high in fat, salt and sugar." The document went on to refer to 'many countries' publishing 'dietary guidelines' which were 'aimed at the world population in order to prevent these diseases and to promote good health'. Ms Steel said that this was a recognition by McDonald's that the relationship between this type of diet and these degenerative diseases was a causal one.
She said that the defendants had used this statement made by McDonald's as the basis for one of their pleadings to prove their case. McDonald's had then made a formal admission in Dec 1993 "that there is a considerable amount of evidence of a relationship between a diet high in saturated fat and sodium, and obesity, high blood pressure and heart disease", and had later stated that the 'relationship' referred to in the admission, was a 'causal relationship'. [N.B. The purpose of formal admissions in libel actions is to remove the need to call evidence on the subject of the admission and thereby save time and costs].
Ms Steel said that McDonald's had omitted cancer from the admission and had therefore left it in as an issue at the trial. She stated that bearing in mind the similarity between the passage in the London Greenpeace factsheet and McDonald's own document, it was extremely oppressive of McDonald's to force the defendants to call evidence on the issue of diet and cancer and that it was an abuse of the libel laws and process of the court.
This argument was given added weight she said, when Robert Beavers (Senior Vice President and member of the Board of Directors of the McDonald's Corporation since 1984) said from the witness box that he couldn't spot any difference between the extract from the allegedly libellous London Greenpeace Factsheet (which states that a diet high in fat, sugar, animal products and salt, and low in fibre, vitamins and minerals is linked with cancers of the breast and bowel and heart disease), and the statement in McDonald's own pamphlet (as above). Ms Steel asserted that there was no real difference between the two statements, and that the only reason the libel action had been taken was that McDonald's didn't like groups such as London Greenpeace drawing these diet related health problems to the attention of the public.
Secondly, Ms Steel added, Dr Sydney Arnott (McDonald's expert on cancer) had said that his opinion of the statement in the London Greenpeace Factsheet was that, "If it is being directed to the public then I would say that it is a very reasonable thing to say. But that if it was being directed towards the scientific community, then I think one would be a bit more careful about the language which one is using". She concluded that in the light of the fact that the factsheet was clearly written for the public and made no pretence of being a scientific journal, Dr Arnold's admission should have been the end of the matter in regards to this part of the case. He was stating that the London Greenpeace statement was a satisfactory summary in terms of the present state of knowledge and how to convey that knowledge to the public.
Ms Steel said that after getting over that hurdle (of showing the relationship between diet and degenerative diseases) "we still have to show that McDonald's food has all the attributes of a typical western diet, being high in fat, particularly saturated or animal fat, salt and sugar and low in fibre, vitamins and minerals." She continued "we would say that the major part of this was admitted very early on in the trial, with the evidence of Paul Preston, (President of McDonald's UK) who admitted McDonald's products were low in fibre, and Professor Verner Wheelock, McDonald's own nutrition consultant who admitted that a typical McDonald's meal was high in fat, saturated fat and sodium content and would not come within the dietary recommendations of various health authorities."
Ms Steel then urged Justice Bell to consider the meaning he might apply to the term 'McDonald's food" in the context of the factsheet. She said that ordinary people would associate the term 'McDonald's food' with 'burgers, fries and milkshakes' rather than the newer range of items such as salads, pizzas and orange juice. She also pointed out that most of McDonald's so-called healthier options have only been available since after the time of the alleged libel and also are not available in all stores. Furthermore, she claimed that the factsheet was entirely clear about the types of food being discussed, since it referred to mass produced hamburgers, chips, cola and milkshakes.
Ms Steel then submitted that the meaning which Justice Bell had attributed
to the words in the factsheet, in his ruling in January 1996, could be
broken down into four parts as follows:
Ms Steel discussed whether each point could be considered as defamatory. Firstly she contended that an assertion that McDonald's food is unhealthy was not defamatory. She said that it does not lower peoples opinion of the company and was self evidently a reasonable comment to make. Whilst there are widely differing public opinions about what is unhealthy and what is healthy, the view given by the London Greenpeace fact sheet is the same as that given by the medical profession. Secondly, she said that to contend that an assertion that eating McDonald's food may well make your diet high in fat, sugar, animal products and salt, low in fibre vitamins and minerals, is defamatory, is to defy common sense. While on this point, she reminded the court that McDonald's own surveys has shown that people described McDonald's food as being 'high in calories and not rated well as being healthy or made with natural ingredients'. She concluded that since McDonald's own customers have got the view already that McDonald's food is unhealthy, reading the London Greenpeace fact sheet would make no difference to their opinion of McDonald's food.
On parts three and four of the split meaning, Ms Steel contended that no ordinary reasonable members of the public would read the words to mean that, "upon eating a single McDonald's meal, they enter a danger zone the end of which is guarded by death". She said that they would simply consider that there are well known dangers of eating too much food which is high in fat, animals products and salt.
Finally she spoke of the suggestion that McDonald's do not properly inform their customers of the dangers of eating too much food which is high in fat, animal products and salt, and low in fibre vitamins and minerals. She said that it was a fact that McDonald's are aware of the dangers of a high fat, low fibre diet and that they do not bother inform the public. Instead, she claimed, they dress up their food as 'nutritious' and 'a useful part of a balanced diet'.
Ms Steel referred to the evidence of Jane Brophy, an NHS health promotion adviser to health professionals, who gave evidence for the defendants. She referred to some of the literature which health professionals are now expected to make available to the public regarding the need for a healthy diet in order to avoid chronic diseases. She concluded: "Most people in health education know that a typical McDonald's meal does not comply with current healthy eating recommendations and that is why their [McDonald's] literature states that the two golden rules for healthy eating are 'variety' and 'moderation' - vague terms which do not help the average person choose a health promoting diet."
Ms Steel then said she was moving on from the meaning of the leaflet, to cover some of the more important evidence that had come out in the trial.
The Judge was reminded of the evidence of defence expert Professor Colin Campbell from the USA, chair of Dietary Prevention of Cancer Worldwide, a highly distinguished international committee of scientists set up to look into and evaluate the links between diet and cancer. In his view, supported by his own research work, "a high fat, low fibre diet is causal in the development of a wide range of cancer and cardiovascular diseases". Further, "even small additions of foods of animal origin to an otherwise all plant diet causes the occurrence of these diseases". He agreed with the World Health Organisation executive report which stated that "the entire population of most affluent countries shows a high-risk profile". But most importantly, he was convinced that these serious diseases are largely preventable by dietary means.
Geoffrey Cannon , Chairperson of the National Food Alliance of consumer organisations, and scientific director of the World Cancer Research Fund, had given evidence for the Defendants as an expert on public health policy. He stated that the US government, European Union, and World Health Organisation all recommended reducing consumption of fatty foods and increasing consumption of fruit, vegetables and other foods containing fibre in order to prevent a significant proportion of the large number of deaths each year from heart disease and cancer. Ms Steel added "So here we have reference to all the major organisations who are making dietary recommendations on the basis of health, and they are all saying roughly the same things as are said in the London Greenpeace factsheet which McDonald's are suing us over."
Mr Cannon had specifically referred to the 1990 World Health Organisation (WHO) Report stated "dietary factors are now known to influence the development of...heart disease, various cancers, hypertension...and diabetes . These conditions are the commonest cause of premature death in developed countries. ...The 'affluent' type of diet that often accompanies economic development is energy dense. People consuming these diets characteristically have a high intake of fat (especially saturated fat) and free sugars and a relatively low intake of complex carbohydrates (from starchy, fibre-containing foods)".
Professor Michael Crawford, an expert on dietary fats and their relation to human health, and a consultant to the World Health Organisation had given evidence for the Defendants. He emphasised the association between a high fat diet and increased risk of cancers of the breast, colon and prostate. This was he said particularly evident from 'population studies' of different countries with varied diets and disease rates, from 'migration' studies (showing that immigrant populations soon adopted the diet and disease rates of the country of settlement), and from the large increase of heart disease and cancer in countries such as Japan where the modern western diet is fast replacing traditional, healthier diets. He stated that "not only are McDonald's encouraging the use of a style of food which is closely associated with risk of cancer and heart disease whilst health professionals are trying to reduce the risks to Western populations, but they are actively promoting the same in cultures where at present these diseases are not a problem".
Professor Crawford had also explained how "modern beef production has become distorted from the wild nature of food to which we are physiologically adapted" in that modern cattle are intensively reared for fast weight gain, resulting in unnaturally high levels of fat, particularly saturated fat. Meat from modern domestic cattle was in excess of 25% carcass fat, compared to 2-5% in wild animals.
Dr Neal Barnard, President of the US Physicians' Committee for Responsible Medicine and an expert on nutrition and health, had said on behalf of the Defendants "many products sold at McDonald's are high in fat and cholesterol, and low in fibre and certain vitamins", and as a result these products "contribute to heart disease, certain forms of cancer and other diseases" (including obesity, diabetes, and hypertension). The links between diet and these now epidemic diseases are, he said, "established beyond any reasonable doubt", and were causal in nature.
Dr Barnard pointed out that, in addition to the problem of consuming too much fat and too little fibre in the diet, there is also increasing concern in the US about the carcinogenic mutagens which form on the surface of grilled and fried meat.
Dr Barnard stated that "McDonald's products clearly contain significantly more fat than government guidelines and health authorities recommend". Evidence had shown that "fatty foods tend to be habituating" and "increase the likelihood of continued high fat intake". His view was that at the end of the day McDonald's food is part of the problem rather than part of the solution.
Looking next at the testimony of McDonald's expert witness Professor Verner Wheelock, a consultant engaged by the company since 1991, Ms Steel pointed out that he had admitted that there is a considerable amount of evidence that diseases such as obesity, diabetes, high blood pressure, heart disease, stroke and some forms of cancer are related to a diet high in fat, saturated fat, salt and sugar and low in dietary fibre. He had also agreed that "We have now reached the point where we can be very confident that diet is the primary factor in the development of most of the degenerative diseases in many industrialised countries." Ms Steel said Professor Wheelock had agreed that it was not sensible to encourage people to eat foods which are high in fat, saturated fat, sugar, sodium and low in fibre, she added "which is precisely what McDonald's are doing, they are continually marketing those very products and encouraging people to eat more and more of them. And at the same time, trying to promote them as if they were nutritious".
Ms Steel continued "We heard in relation to that point, that despite the fact that McDonald's is claiming to support the health of the nation dietary initiatives, which were put in place to try to improve the populations' health, that claimed support has had no effect at all on their marketing department. That was admitted by John Hawkes, who is their chief marketing officer. We heard that they do not have a nutrition department and that Mr. Oakley, the Senior Vice President of McDonald's UK, had said that it was not felt to be an important enough issue to have a separate nutritional department like McDonald's have marketing or communications departments. So we say that is a clear indication of the fact that their so-called support for health of the nation dietary initiatives is basically just another PR stunt. There have been public pronouncements in the newspapers about how they support that, how they are working towards implementing it, although it is quite clear that any changes they are making are very slow, minimal, and are only being done because of the huge amount of pressure that the company has come under from nutritionists."
Moving on to the fourth section of the meaning determined by the Judge, Ms Steel said that the company widely touted it's products as 'nutritious'. Witnesses for McDonald's had been questioned about what they meant by this, and they all basically agreed that all nutritious meant to them was 'foods that contain nutrients'. Edward Oakley, Chief Purchasing Officer and Senior Vice-President of McDonald's UK, had said this, and he was the person responsible for the nutrition guides that are available in McDonald's stores. David Green, Senior Vice-President of Marketing (USA), said the same, and he even thought Coca Cola was nutritious, because it provided water, and that was part of a balanced diet. Ms Steel added "which I think just goes to show how ludicrous the company's position is, in their desperate attempt to justify the use of the word nutritious in their literature and advertisements". Even Professor Wheelock defined the word nutritious to mean 'contains nutrients'. He had to accept that all foods have nutrients, so Ms Steel argued, if used in the way that McDonald's suggest, effectively the word nutritious is completely meaningless.
Ms Steel went on to the evidence relating to the incident in the United States where the assistant Attorney General of Texas California and New York took action over what they considered to be a major but deceptive advertising campaign by McDonald's in 1987.
She reminded the court of an internal company memo, which reported on a high level meeting in March 1986 with public relations advisors prior to this advertising campaign which stated "McDonald's should attempt to deflect the basic negative thrust of our critics.....How do we do this? By talking 'moderation and balance'. We can't really address or defend nutrition. We don't sell nutrition and people don't come to McDonald's for nutrition". Ms Steel said that this was an admission from McDonald's that their use of the word nutritious was effectively deceptive. She said "it is as clear as day that they are well aware that their food is not nutritious and it is not viewed by the public as being nutritious, but they are then going to proceed to attempt to deceive the public in order to persuade them to eat more of the company's junk food".
Ms Steel then went on to the evidence of Stephen Gardner, former Assistant Attorney General of Texas, who gave evidence for the Defence. He said that he had written to McDonald's about their advertising campaign on 24th April 1987 stating: "The Attorneys General of Texas, California and New York have concluded our joint review of McDonald's recent advertising campaign which claims that McDonald's food is nutritious. Our mutual conclusion is that this advertising campaign is deceptive. We therefore request that McDonald's immediately cease and desist further use of this advertising campaign. The reason for this is simple: McDonald's food is, as a whole, not nutritious. The intent and result of the current campaign is to deceive customers into believing the opposite. Fast food customers often choose to go to McDonald's because it is inexpensive and convenient. They should not be fooled into eating there because you have told them it is also nutritious. ...The new campaign appears intended to pull the wool over the public's eyes." Ms Steel said this was useful backup, if any was needed that it has got to be a reasonable opinion to hold that McDonald's are trying to show their food as nutritious when the reality is the opposite.
She continued, in response to a question from the Judge, that on the point about what the word nutritious means to the average member of the public, Mr Gardner had stated that to the average consumer the word nutritious "conveys a sense of a healthy product that is not deleterious to one's physical well-being. Specifically, a product that is nutritious is one that does not contain excessive amounts of nutrients that should be avoided, such as fats, sodium and the like". Ms Steel said that the defendants agreed with this, but added that also it should contain useful amounts of vitamins and minerals, the question being, "is the food making a positive or a negative contribution to the diet overall".
Ms Steel then went on to the evidence of Dr Tim Lobstein, co-director of the Food Commission, who stated that he had studied eight McDonald's 'meal combinations' which were suggested by the company in the pamphlet 'Good Food, Nutrition & McDonald's'. He had concluded that they are "generally imbalanced with regard to their nutrient content". He said they are "excessively fatty and salty", and correspondingly low in "nutrient density" of several essential nutrients such as vitamins and minerals. Dr Lobstein had also commented that McDonald's line that their food can be eaten as part of a balanced diet was "meaningless" because "you could eat a roll of sellotape as part of a balanced diet". His view was that rather than using the word 'balance', the general view of health professionals was that there should be greater consumption of healthy foods. He had also stated that "McDonald's tends to take the basic food ingredients and add fat, salt and sugar, so encouraging their customers to eat a worse diet."
The evidence of Peter Cox, a former marketing consultant, and witness for the defence, was then referred to in relation to McDonald's not alerting the public to the dangers of eating a high fat, low fibre etc diet. He pointed out that the pamphlet 'Good Food, Nutrition and McDonald's (which wasn't available in stores) does make it clear that McDonald's were aware in 1985 of the links between diet and diseases and that his opinion therefore was that the effect of the company's efforts to promote their products as 'good, nutritious food' over the years was "to debase the concept of 'healthy eating' to no more than a cynical sales promotional ploy".
He had gone on to say that the company's claim to be concerned about healthy eating was not borne out by the products that they sold. Even their salads, which are only available in some stores had a 'ludicrously high' fat content (over 50% calories from fat). At the time Mr Cox gave evidence the company were promoting a new menu item - the "Mega Mac" which had four meat patties and huge amounts of fat and saturated fat. Ms Steel said "I think that shows that they do not have any serious desire or intention to promote healthy eating". Mr Cox had said there was a huge 'credibility gap - the difference between the image portrayed...and the reality of the food sold'. And he believed that the few positive steps made had been taken rather grudgingly as a result of public pressure.
Ms Steel then went on to evidence relating to frequency of customer visits and McDonald's encouragement to people to eat their food more often. She reminded the court of the evidence of Mr Beavers from McDonald's Corporation who agreed that McDonald's had pioneered production methods and "created an industry" which had "helped to expand the eating out sector". He had reported that half of all meals in the USA are now eaten outside of the home, - an increase from 1 in 3 around 15-20 years ago. He said this was a worldwide trend, that "lifestyles are changing" and McDonald's have played a part in that. He had also stated that in countries where there had previously been no hamburger tradition advertising was 'part of the parcel' in establishing company's influence on the diet. In relation to that he said their food was advertised as 'nutritious'.
Ms Steel then referred to McDonald's own documents from the USA which showed that 77% of customer visits to their stores (i.e. 3 out of every 4 people) are from 'heavy users' who eat at McDonald's an average of 3 times a week. Mr Fairgrieve (McDonald's UK) agreed that such customers were the type of people who were most likely to also eat at other fast food outlets, which Ms Steel said obviously has implications for the evidence about the make up of people's diet.
Mr Green, McDonald's Senior Vice President of marketing gave evidence that in the USA, 11% of visits to McDonald's were from 'super heavy users' who ate there four or more times per week. The company's marketing strategy was to target heavy users to increase their frequency of visits. So, Ms Steel said, not only are there concerns about the fact that people are eating at McDonald's so frequently, but on top of that, there is additional concern that a company which purports to be trying to encourage people to adopt a balanced and healthy diet, is in fact targeting people who are at risk to encourage them to eat even more of the same type of food that is high in fat and so on.
In relation to the UK, the court had heard from Mr Fairgrieve (McDonald's UK Marketing Services Manager) who stated that the company now had 650 million customer visits per year and who said the entire eating out market is in expansion. This effectively means that more and more people are eating less meals at home and become more reliant on the type of food sold by companies such as McDonald's, with all the implications that has on their diet as a whole.
Mr Fairgrieve had said that only 38% of the population actually visited a McDonald's store in any year, which created a different impression from that given by Paul Preston who said that they considered about 98% of the population were their customers. Two surveys produced by Mr Fairgrieve indicated that between 2-4% of McDonald's total UK customer base ate at McDonald's several times a week.
Mr Morris said that the statistics showed that McDonald's was completely dependent on loyal clientele. That a small percentage of population make, in the USA, 77 percent of all the visits, so a typical McDonald's visitor is in fact someone who is eating there regularly. Not only are they dependent on those customers, but they actually target those customers to increase that regularity of visits.
On top of the evidence from the company there was also evidence provided by Dr Tim Lobstein, and Fiona Winters, for the defence. They had carried out a survey in 1987, which had found that 31% of people questioned at fast food stores in Peckham ate fast food every day, and that 9% of the total sample ate burgers every day. Dr Lobstein had concluded that there were sections of the population who were eating an very unbalanced diet. He also referred to other surveys and said he was particularly concerned by the expansion of McDonald's promotions into schools and hospitals.