BETWEEN: (2) MCDONALD'S RESTAURANTS LTD.
- AND - (2) HELEN MARIE STEEL (4) DAVID MORRIS
PLAINTIFFS' CLOSING SUBMISSIONS VOLUME 3 RECYCLING & WASTE RAINFORESTS
BARLOW LYDE & GILBERT |
1. W/CO
1.1 The relevant X heading(s)* is (are)*:
"McWasteful" (and "McGarbage" ) *
*see later under Litter
- with, as ever, "McDollars", "McProfits" and McGreedy"
1.2 The principal part of the text which is relevant is the single para. under
"PET FOOD & LITTER" in col.1 on p.3.
- though the heading in the box above
"FIFTY ACRES EVERY MINUTE"
and the first sentence under it may also be relevant in indicating the (alleged) scale of destruction (see also, of course, under Rainforests later).
1.3 The relevant part of that para. is:
2. Pleaded Meaning : Ream S/C :
C (first lineandahalf and last line).
D
both on p. 14.
2.1 No specific complaint about litter (more later) .
3.0 No reference anywhere in the leaflet (or in the S/C, even by the most general implication) to CFCs or methane.
3.1 Return to these briefly later on, but observe now that they are, in truth, irrelevant (as additives and foreign bodies were to FP).
4. Putting C and D together, and looking at the leaflet (relevant parts), one can, perhaps, read it like this:
"McD's destroy vast areas of (rain)forest every year, of which about 800 square miles * are used for McD's packaging [much of which ends up as litter.] And they lie about the recycled content of their paper because only a tiny % of it is in fact recycled."
*italics
in text
of leaflet
4.1 Leaving "rainforests" on one side for the present (though the separation is a bit artificial: see meaning C), the sting in relation to "waste" and "recycling" is:
* not 'using'
"McD's are guilty of destroying* huge areas of trees to supply themselves with paper.
They lie about the recycled content of that paper.
(And the result is litter all over the place . ) "
5. These are allegations of fact which are defamatory of both Plaintiffs (even if people thought the First Pffs. primarily responsible for the destruction of the forests, they'd obviously see that the Second Pffs. were taking the benefit of and were therefore complicit in the destruction).
6. The Facts.
6.1 In their original Particulars of Justification and Fair Comment*, the Defendants pleaded this:
*Served
3.12.90.
Pleadings I,
Tab 8.
In 1972 Bruce Hannon, an engineer at the University of Illinois, determined that 315 square miles of forest would have to be cut down to keep McDonald's supplied with paper packaging for one year. Since then the chain has doubled.
(emphasis added)
6.2 That plea has since been abandoned, and (it appears) has been replaced* with something along these lines:
*During
the course
of the trial
"The leaflet doesn't say "cut down". It only says it takes 800 mi² of forest, etc. This means sustainable forest, not forest which is cut down."
6.3 Quite apart from the fact that Bruce Hannon (as reported in the San Francisco Examiner in 1972) never actually used the words "cut down", and from the q. what light this change of position may shed on the Ds' state of mind,*
*(more later
under malice)
the acute question now is whether there is actually any issue left for the Court to consider in relation to the amount of trees attributable to McD's paper requirements.
6 .4 For if the plain meaning of the leaflet is that McD's destroy "vast areas" of forest (800 mi² annually) in order to supply their packaging needs, then there is no defence to that allegation. And this is not because the evidence of Mr Kouchoukos et al shows that it is false, but simply because no evidence is offered by the Defendants to prove that it is true.
6.5 Further, even if (contrary to all sense) the man in the street might have thought that the reference to 800 mi² was (in context! ) no more than a statement about the area of sustainable forest required to satisfy McD's packaging needs, then it wouldn't be a defamatory allegation anyway.
6 . 6 Not but what, Mr Kouchoukos, Mr Van Erp and Mr Mallinson have given their evidence (which, at least, was interesting), so I'd better summarise it.
6.7 Kouchoukos' calculations: the amount of 'trees'
6.7.1 The first important observation is that, since Kouchoukos (DK) backcalculated the squaremileage of trees from the amount (in weight) of virgin fibre used for McD's purposes (in 1992), * the eventual figure represents an area of 'reconstituted' trees, not an actual area of trees cut down solely for McD's use.
* 7:32 ff.
& Y XII/1A/App.5
6.7.2 The reason is that only about 3040% of the tree is used for paper, after the needs of others (chiefly the construction industry) have been met*.
* Mallinson
Statement, pp
5 and 6.
Affirmed in
evidence :56 :3.
6.7.3 DK's calculation for the US in 1992 is set out, step by step, with references, in Table 1, post.
6.7.4 Note that the figures drawn from the book by the Forest Service of the USDA (Y III/4, App .5 ) showing total ft³ of timber in the US and total acreage of (productive) US timberland relate to 1987 and might have changed by 1992; but the change (if any) is unlikely to affect the broad result significantly. * The figure for the ft³ timber/ton pulp is unlikely to have changed very much at all.
* Because they
will have
increased/
decreased
together.
Table 1
Refs. to Appendices
in Y III/4 (File p. nos.)
DK's calculation of McD's use of 'trees' in the US in 1992
1. Total ft³ of US timber : 831,314,000,000
5/116, Table 38
2. Total acreage of productive (i.e. not 'reserved' or 'other') timberland in US : 483,000,000
5/111, Table 36
Therefore 3. Yield of timber in ft³/acre (1 2) = 1720
4. Yield of pulp: 1 (US) ton/117.4 ft³ timber
5/327, Table B8
5. Yield of pulp/acre: (3 4) = 14.65 tons
6. McD's use of virgin gulp in 1992: 88,761 tons
7/349,
Col. 7 &
Y XII/1A/
App.5,Col.7
Therefore 7. Acres needed to yield that weight (6 5) = 6058.8
Therefore 8. Square miles needed (7 640) = 9.46
Note: None of this needs verification by reference to oral evidence because the primary figures have all been agreed by the Ds. The rest is simply (simple) arithmetic.
6.7.5 Taking the US fig. for 1992 (9.46 mi² of 'trees'), it is possible to make a rough estimate of their need for 'trees' worldwide. * See Table 2, below.
* DK: 7:357
Table 2
1. P III/4/106 gives the following totals for McD's rests. in 1992:
US : 8959
EU : 1549
Rest of World : 2585 Total : 13,093
2. If 8959 rests . in the US used 9.46 mi of 'trees', then each rest. needed 0.0010559 mi² of those 'trees'.
3. 13,093 rests. would therefore have needed (at the same rate) 13.82 mi² of 'trees' .
6.7.6 In fact, the figure is (was) probably somewhat smaller, because Casper van Erp* calculated that the European McD's requirements for 'trees' was only 1.29 mi² (as opposed to 1.6 mi², which use of the US figs. yields) .
*62: 2627;
and Mallinson
made it 1.41 or
1.42 mi² (0.29m²
of actual
trees ): stmt 56
6.7.7 In the end, these small differences (+ 0.3 mi²!) are immaterial. If the leaflet means that McD's paper requirements involve the destruction of 800 mi² of forest p.a., then
this part of the case can be closed.
6.8 Have McD's lied about the amount of recycled fibre in their paper pack?
6.8.1. This involves two further qq:
(1) What is/was the recycled content of McD's paper?
(2) What statements have McD's made about this to the public?
6.8.2. Then there is another q:
What is or was meant by 'recycled'?
(1) The Ds spent a great deal of time in XX of Mr. Langert * and Mr. van Erp + asking about the proportions of preconsumer (or postindustrial) and postconsumer recycled fibre to be found in McD's packaging.
* Day 8 + Days 62 & 63
(2) A breakdown is to be found at P IV/5/274, relating to 1990* (although as J observed*, the relative %s do not total 100!)
* and earlier?
See the *s in 274
* 9:74
(3) There is another breakdown (for Jan. 1992)* at P V/47!728. For a comparison between the two (1990 and 1992), see Table 3.
* which may
therefore
represent the
position in 1991:
The doc. is dated
10.2.92. (725) .
(4) And the distinction between pre and postconsumer recycled material is set out on the next page (729) of that doc*. (This is a McD's US doc*. Q: does this page suggest a company which in its internal advice to its employees: this is not a 'PR' release is encouraging them to (continue to) try and 'fool' their customers?)
* (P V/47).
* Starts on 725
(but please ignore
the spelling
of the last
word above
NEWSLETTER!)
(5) This distinction was also described by Langert * and van Erp+
* 9:11:1118
+ 63:32:11 to
33:36
(6) In essence, the combined effect of this evidence is:
(i) Even in 1990, McD's packaging (where it contained recycled paper at all) contained a substantial proportion (up to 5096 overall?) of postconsumer waste.
Table 3: PC/PI %: US 1990 and 1992(1)
1990 1992 (1)
Item: PC : PI % PC : PI %
Napkins 8: 63 30: 70
Carryout bags 0:50 50100: 050
Corrugated Containers 35: 0 10: 25
Sandwich Wraps 0: 37 No figs. given:
but see text on 72X *
Toilet Tissue 0: 65 030: 35
Carryout Trays 98: 2 6098: 240
HM Cartons 35: 65 40: 60
Trayliners 53: 37 No figs. given
* As to this, note that until about 1993, the technology was not available to overcome FDA regulations concerning directcontact (with food) packaging, with the result that it was not possible to use postconsumer waste for items such as sandwich wraps and cups:
Langert: 8:56; 2957: 13.
Note also: Figs. for 1992 are given on p. 57 of
App. 4 to DK (1) in Y III/3: these show
c. 43% PCW of recycled material.
(ii) In any event, the distinction may not have any great significance from the environmental point of view, because 'postindustrial' (or 'preconsumer') excludes the recyclable waste generated by papermaking* and is confined to waste generated "during the intermediate steps of producing an end Product"(emphasis added)*.
* and PSF
m/facture:
van Erp:
63:33:2936
*P V/47/729.
(iii) This means that it is, from the environmental point of view, probably as desirable to use postindustrial recycled material as it is to use postconsumer. The reason is that if it is not recycled, eg during the manufacture of Happy Meal cartons for McD's*, it will go straight into the municipal waste stream (MOOS) along with all the postconsumer waste.
* The 'conversion'
process:
Langert: 9: 11: 14
van Erp:
63:33:48
(iv) It is, of course, obvious that recycled postindustrial waste which is incorporated in finished products will eventually become postconsumer waste. But postconsumer waste itself cannot be recycled indefinitely, either, so that both measures serve merely to postpone the time at which the material will, inevitably, enter the MWS+. But at least in either case, the waste doesn't go straight from the factory floor or the nation's dustbins into the MWS.
+ see (eg):
van Erp (ans. J):
62: 24:33
25:15
This raises the interesting q. * how far all the money and effort spent on recycling is worthwhile: much more effective, as Langert pointed out and as McD's have recognised, is to try to achieve an overall reduction in the amount of material used in the first place.
* See (eg):
Langert (and J):
8:16:2617:9
Kouchoukos (and J):
7:6:68:2
van Erp:
62:17:1945
6.8.3 If the foregoing reasoning is correct, one can turn to
Y XII / 1A/App .5
to see what the overall recycled content of McD's paper was from 19871992 (exc. 1990) in the US.
van Erp:
62:23:713.
6.8.4 For Europe, the overall figure relates only to 1992 and was 46% (inc. transport packaging).
6.8.5 However, we do know that the McD's (carryout) bags in the UK have contained recycled waste paper since the late 1970s: Ken Allan of Smith Anderson:
Y XII/1
The history is:
% %
Virgin Waste
Late 70s1985: 75 25
19851990: 50 50
19901995: 20 80
1 April 1995: 100
6.8.6 In Europe, no formal distinction is made, or comprehensive record kept of the proportions, between postindustrial and postconsumer waste.
See (eg):
van Erp:
62:16:4653.
6.8.7 The reason for this may well be that the distinction has no great significance for the environment. Its genesis in the US, as an issue relating to labelling, seems to have been the FTC guidelines promulgated in April 1991 *. And the reason for it seems to have been that the FTC (and various other govt. agencies in the US) believed that, by that time*, public interest in the question of recycling was such that a more precise definition was needed*.
*Langert
9:13:15
*starting in 1990: t
9:13:256
*9:14:110 c
Reflected on
P.729 of P V/47: Feb '92
by which time some
states (inc. RI) had
apparently enacted
legislation.
6.8.8 This has two consequences:
(1) Until about 1990, noone seems to have given the q. a lot of thought. Accordingly, up to that time, manufacturers and retailers (inc. McD's) were quite properly and legitimately simply using the term "recycled" on their packaging, whatever its actual proportions of pee and postconsumer content might be (though for McD's, in that year, probably about 50/50).
(2) The FTC is a regulatory body for trade ( our OFT?), not the environment. Its response to public opinion about the importance of recycling and its belief as to the public's likely perception of the meaning of "recycled" have no necessary implication that the public's opinions and perceptions were correct so far as actual benefit/detriment to the environment is concerned*.
*see, eg, Langert
8:17:25;
and
6.8. 2 ( 6 ) (ii) (iv),
ante.
6.8.9 Overall conclusions:
(1) Since at least 1987, McD's paper packaging has contained a significant proportion of recycled material. *
* XII / 1A/App .5
(2) Since at least 1990 (and perhaps earlier: see the * * on p.274 of P IV), a very significant proportion of that recycled content has been post-consumer material. *
*P IV/5/274
P V/47/728
(3) Those propositions apply with certainty to the US (McD's largest market in every sense).
(4) The position in the UK and Europe is less clear. But by 1992, 46% of the paper was recycled; and, in the UK at least, the bags have contained significant proportions of recycled waste since the late 1970s.
(5) Until April 1991, it was (in the US: a fortiori elsewhere) quite legitimate to use the term "recycled" whatever the precise proportion of preandpost consumer waste.
(6) That distinction has no real significance for the environment, anyway.
(7) Therefore it has never* been true that "only a tiny per cent" of McD's paper packaging is recycled.
*from 1987 onwards
at least.
(8) There is no evidence that any statement made by McD's about the recycled content of their paper was false, still less any evidence that they have deliberately set out to deceive "fool" people about this.
6.9 Litter
6.9.1 No specific complaint in S/C*. Is litter a legitimate part of the case?
* cf.
Residues:
para 6 of FP
6.9.2 Law
If the 'libel' (i.e. the doc. containing the w/co) has a 'common sting', then the Pff cannot, by selecting some only of the allegations in the libel on which to sue, prevent the Deft . from seeking to justify other allegations in the libel which are relevant in generating the common sting. If, however, the libel contains two or more distinct and severable charges (which is a matter of fact and degree in every case), then the Pff is entitled to select which of these charges he will complain of (sue on) and the Deft. is not then entitled to seek to justify any charge of which the Pff has not complained.
Polly Peck v. Trelford [1986] QB
100 at 1032 AF, per O'Connor LJ
6.9.3 Litter (unlike food additives, foreign bodies, CFCs and methane) is mentioned in the leaflet, and in terms which are obviously, in context*, defamatory of the Pffs (both of them). The q. therefore is whether there is a common sting in the leaflet to which the reference to litter contributes.
*i.e. as part of a
wholesale attack on
McD's: the leaflet
6 .9 .4 The answer is, probably, No. The allegation that McD's destroys vast areas of rainforest to provide for their packaging (and other) needs which is reflected in the last para. of the col.: "helping the McD's empire to wreck this planet" is really quite separate (in kind) from the allegation that they are (culpably) responsible for causing a litter problem in cities.
6.9.5 Of course, it might be said that if you put the two allegations together, you can force a common sting out of them, such as,
"McD's are irresponsible in environmental matters"
However, the true q. is not, how can ingenuity be used to wring some kind of common sting out of these words?
But, how would the ordinary reader interpret these words? *
* See, for example,
Jones v. Skelton
[1963] 1 WLR 1362
at 1370, last para.,
per Lord Morris of
BorthyGest .
6.9.6 If that is the proper test (which, on the authorities, it clearly is), then the ordinary reader is going to take on board the two allegations; but, because they are so different in kind (as well as degree), he is not likely to elide the two into some general inference about McD's and the environment: in other words, he is going to leave this part of the leaflet with two reasons* for is approving of McD's (one very serious, one relatively trivial), not one (or three)*. In exactly the same way, the allegation that McD's destroys the rainforests is distinct and severable from the allegation that they lie about the recycled content of their paper; as, indeed, the latter is from the litter allegation.
* three, if you
include the "lies"
allegation
*or four
6.9.7 But in case this is wrong a brief (very) look at litter.
6.9.8 Two qq. only:
(1) Who drops the litter?
Ans: the customers (and their children).
(2) Who picks it up ?
Ans: McD's and the local authority.
6.9.9 The first of those qq . is, of course, ignored in the leaflet (so, obviously, is the second).
- Italian wine producers put an injunction on their bottles:
- Don't discard the bottle into the environment
(non disperdere it vetro nell' ambiente).
One wonders why?
6.9.10 See also Ashworth: Day 75(all).
6.9.11 If the key is culpability (which, in a defamation action, it must be), then the Defts' case can be summarised in a syllogism of which the Queen of Hearts might have been proud:
McD's uses packaging.
Litter is composed of packaging.
Therefore McD's are to blame for the litter.
(Off with their heads!.
6.10 CFCs
6.10.1 Irrelevant: nothing in the leaflet (nor any common sting to which they could relate).
6.10.2 But, as an insight into McD's sensitivity to the environment (and public opinion), a short history is quite instructive:
(1) Pre1975: McD's in the US were using paper for their sandwich wraps. There was public concern at that time about the use of virgin fibre*, so McD's commissioned the Stanford Inst. to look into the feasibility of using plastic instead. *
* Langert
8:14:811
* P IV/1/2
(2) Dec 74/Jan 75: Stanford Inst. advises in favour of PSF instead of paper*. So McD's change to PSF, using (at some stage) CFCs to some extent (50%:50% hyrdocarbons*).
P IV/1/11
* Langert
8:39:1928
(3) 1986: Concern growing about effect of CFCs on upper atmosphere. *
* Duxbury
11:20: 204
(4) Aug 1987; First SORG report noting large ozone hole and implicating CFCs. *
* Duxbury
11:21:2122:25
(5) Aug 1987: McD's announce intention to stop using CFCs, with the phaseout to be completed within 18 months. *
*P V/21/492
(6) 16 Sept 1987: Montreal Protocol* signed.
Effect: 50% of 2/3 of global use
to be phased out by 1999.
The rest later * . HCFC22
(previously CFC22) not included.
* Behind
Duxbury
in Y IV/9 at (b)
* Duxbury
11:28: 1728
(7) April 1988: NRDC, EDF and FoE welcome the Foodservice Packaging Institute's CFC phaseout programme and endorse the decision to substitute HGFC22 which, they say, has "a far smaller ozone depletion potential". *
*P V/22/494
Langert, in his Perseco role,* believed that HCFC22 had about 5% of the depletion potential of CFC12 but was still concerned about that. *
*from Summer 1988:
8:41:9
*8:42:58.
(8) End 1988: McD's phaseout of CFC12 in US, directed by Langert, is complete * (ahead of schedule and far ahead of Montreal deadline).
*8:39:58
confirmed by:
P IV/20/489B
(9) 198990: McD's in US are using 75% hydrocarbons, 25% HCFC22. *
*8:39:258
(10) 1990: Langert notices that the Montreal Protocol is being updated and that HCFC 22 may be as damaging, in a different way, as CFC12. *
*8 :42: 1922
(11) 1990: In fact, by coincidence, McD's in US were already moving out of
PSF clamshells and back to paper, chiefly in order to achieve sourcereduction and better recyclability, but partly because of public concern about landfill. *
*Langert: 8:35:2436:23
By the end of 1990, McD's US had stopped using HCFC22 entirely (far ahead of Montreal Protocol deadline). *
*8:43:717
(12) Use of CFCs and HCFCs in McD's worldwide:
1989 1994: P IV/20 and 20A
Table 4
No. of Countries
CFC HCFC-22
1989 5 22
1990 4 21
1991 0 22
1992 0 9 *
1993 0 9 +
1994 0 2 x
* of which 7 for Big Mac and 6 pc McNuggets only
+ of which 8 " " " " " " " "
x of which 1 " " " " " " " "
and 1 " " " only
6.10.3 If culpability is the key (as it must be), then if CFCs have any relevance at all, it can only be on the basis that McD's have used them knowing that they were implicated in damage to the upper atmosphere (or else, perhaps, with a cynical disregard for whether they were or not).
On the basis of the short history set out above, any such suggestion is wholly unsustainable: on the contrary, what it actually shows is an almost instantaneous response by McD's to scientific perceptions of environmental threats and 'best practice' and long before any legal obligation to take action came into force.
6.10.4 Irrelevant topics related to PSF:
- Landfill (but see XX of Lipsett on this, if necessary: 11: 26).
- PSF recycling.
- Disposables v. reusables (but see, if necessary, Langert: 8:17:9 25:1.)
- PS 'migration' (but see Prof. Walker on this, if necessary: 26:28 : 2330 : 48 )
- PSF incineration.
6.11 Methane
6.11.1 Irrelevant: nothing in the leaflet (nor any common sting to which it could relate).
6.11.2 But see Duxbury, 11:39:1042:19, for McD's contribution (and cattle v rice paddies!).