witness statement




name: Stephen Gardner
section: Advertising
for: The Defence
experience: Assistant Attorney General, Texas - Nov 1984 - Dec 1991


summary:
We investigated McDonald's for a series of advertisements that promoted McDonald's food as nutritious. From an analysis of the content of McDonald's food as a whole, it was determined that McDonald's food was, as a whole, not nutritious.

We've made it clear to McDonald's that the advertisements were deceptive and illegal both as a whole and in certain specifics.


cv:

I am currently a member of the faculty of the School of Law, Southern Methodist University, Dallas, Texas. I also maintain a limited private practice of law.

From November 1984 until December 1991, I was the Assistant Attorney General in charge of the Dallas Regional Office of the Texas Attorney General's Office. I operated almost exclusively within the Consumer Protection Division of that Office.

Full cv:
(not available for this witness)




full statement:

AFFIDAVIT OF STEPHEN GARDNER

County of Dallas
State of Texas
United States of America

BEFORE ME THE UNDERSIGNED NOTARY PUBLIC on this day personally appeared Stephen Gardner, known to me to be the person whose name is hereunder subscribed, who being by me first duly sworn, on his oath deposed and said as follows:

1. My name is Stephen Gardner. I am qualified in all respects to make this affidavit. All of the facts stated herein are within my personal knowledge and are true and correct.

2. The purpose of this affidavit is to detail my experiences in investigating McDonalds Corporation (herein, "McDonald's") for various violations of the Texas Deceptive Trade Practices Act, as part of my responsibilities and duties as an Assistant Attorney General for the State of Texas. I have neither been promised nor have I received any compensation for giving this affidavit, nor would I accept such if offered. This affidavit supplements and replaces the affidavit I have previously written in this matter .
3. I am currently a member of the faculty of the School of Law, Southern Methodist University, Dallas, Texas. I also maintain a limited private practice of law.

From November 1984 until December 1991, 1 was the Assistant Attorney General in charge of the Dallas Regional Office of the Texas Attorney General's Office. I operated almost exclusively within the Consumer Protection Division of that Office.

4. The primary statutory responsibility of that Division is to enforce the Texas Deceptive Trade Practices Act. The Texas Deceptive Trade Practices Act provides for private enforcement through individual litigation and for public enforcement by the Division. The underlying purposes of the Texas Deceptive Trade Practices Act are "to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection." Texas Deceptive Trade Practices Act Section 17.44.

5. Within that overall framework, the Consumer Protection Division has the duty and specific authority to bring a lawsuit whenever it has reason to believe that a company is engaging in, or is about to engage in any act or practice declared to be unlawful by the Texas Deceptive Trade Practices Act, if it believes that legal proceedings would be in the public interest. Texas Deceptive Trade Practices Act Section 17.47(a).

6. The offices of the Attorneys General of California and New York operate pursuant to statutes that place essentially the same duties and responsibilities on those offices. I have familiarity with the functioning of the office of the Attorney General of California because I have worked on numerous occasions with that office on law enforcement matters. I have familiarity with the functioning of the office of the Attorney General of New York for that same reason, and because from 1982 to 1984 served as an Assistant Attorney General in the Bureau of Consumer Frauds of that office.

7. It was in this context that, in 1986, I first investigated the marketing practices of McDonald's as part of my official duties, together with my counterpart in the office of the Attorney General of California. To my knowledge, the Attorney General of New York was at the same time conducting a parallel investigation which was coordinated with our investigation.

8. The 1986 investigation was a part of an industry-wide investigation of the fast food industry for its failure to disclose ingredient and nutritional information about fast foods. Many Americans - two-worker households in particular- are forced by circumstance to go to fast food outlets as one of their primary sources of meals. Americans are concerned about the ingredient and nutrition content of the foods they eat, and have repeatedly expressed a desire to obtain more information about those foods. Fast food meals tend to contain high amounts of the very things that health professionals counsel against in the diet - fat and sodium in particular.
The Attorneys General had discovered that fast food restaurants did not make the ingredient or nutrition content of their foods available to the public. We believed that this failure to disclose ingredient or nutrition in some manner probably violated our state consumer protection and food labeling laws.

9. Therefore, we embarked on a series of meetings with the major fast food chains, McDonald's among them. On May 6, 1986, we wrote McDonald's a letter advising it of our concerns and requesting a meeting with McDonald's. A copy of this letter is attached hereto as Exhibit 1 and is incorporated fully herein by this reference. McDonald's accepted our invitation and a meeting was held. Although no fast food chain was initiaily willing to label its foods properly or otherwise to disclose the ingredient and nutrition content of its foods, we were able through cooperative discussions to arrive at a solution - disclosure of ingredient and nutrition information in a booklet, poster, or other such medium rather than disclosure on the labeling of each individual item. This compromise permitted the fast food chains more flexibility in the design and use of their packaging materials.
Although we continued to believe that ingredient and nutrition information was best delivered on the label of the product, we agreed to accept the use of brochures and other media as minimally complying with our state laws. Accordingly, we wrote to McDonald's on June 3, 1986. A copy of this letter is attached hereto as Exhibit 2 and is incorporated fully herein by this reference. At the time the June 3 letter was sent, McDonald's had not agreed to make ingredient and nutrition information available to consumers through any mechanism. McDonald's choice at this point was to comply with our state laws in this manner or to be sued for violations of those laws.

10. It is to me beyond argument that our discussions with McDonald's were responsible for forcing McDonald's to begin providing booklets containing ingredient and nutrition information in all of its stores.
However, impelled by an apparent desire to fool the public into believing that disclosure of ingredient and nutrition information was something it was doing on its own, McDonald's issued a press release to that effect, just days before it knew that the Attorneys General planned to announce the agreement that resulted in the availability of ingredient and nutrition information. McDonald's press release was widely reported across the United States.

Within a day or so, the press reported the fact that McDonald's had engaged in a bit of subterfuge and deception when it announced what it represented to be a unilateral decision on its part but what was in truth an arrangement to which McDonald's had arrived only as an unwilling participant. A copy of a July 21, 1986 letter from McDonald's to us is attached hereto as Exhibit 3 and is incorporated fully herein by this reference. A copy of a July 23, 1986, letter from us to McDonald's is attached hereto as Exhibit 4 and is incorporated fully herein by this reference. A copy of a July 30, 1986, letter from McDonald's to us is attached hereto as Exhibit 5; and is incorporated fully herein by this reference. A copy of an August 5, 1986, letter from us to McDonald's is attached hereto as Exhibit 6 and is incorporated fully herein by this reference.

Review of Exhibits 3-6 shows that McDonald's had assured us that would indeed make the desired information available, as we had demanded. Because we had achieved our goal of making this information public, we closed our investigation without taking separate action against McDonald's for its deceptive act of self-promotion.

11. Less than one year after this investigation was concluded, in 1987, I investigated the practices of McDonald's a second time, this time together with my counterparts in the offices of the Attorneys General of both California and New York.

12. We investigated McDonald's for a series of advertisements that promoted McDonald's food as nutritious. From an analysis of the content of McDonald's food as a whole, it was determined that McDonald's food was, as a whole, not nutritious. Virtually all of the products sold by McDonald's contained one or more attributes- such as high fat, high saturated fat, high sodium content, and various additives- that made them food that should be avoided. Therefore an advertising campaign that depicted McDonald's as a purveyor of healthy, nutritious foods-as this campaign did-was deceptive and therefore illegal under the laws of the States of California, New York, and Texas.

13. Upon conclusion of our initial investigation, we determined that the aprropriate enforcement action would be to write McDonald's a letter that advised it that its entire advertising campaign had the tendency and capacity to deceive millions of Americans.
We therefore wrote to McDonald's on April 24, 1987 a letter that was signed by then Texas Attorney General Jim Mattox. This letter advised McDonald's of the deceptive nature of its advertising campaign and demanded that McDonald' s cease and desist from further use of that advertising campaign. A copy of this letter is attached hereto as Exhibit 7 and is incorporated fully herein by this reference. Exhibit 7 includes copies of the eight advertisements at issue. The April 24 letter discusses in depth the reasons for our conclusions of deception.

14. In response to the April 24 letter, we received a letter from McDonald's law firm,written by Joseph A. Califano, dated May 4, 1987. A copy of this letter is attached hereto as Exhibit 8 and is incorporated fully herein by this reference.

15. I responded to Mr Califano's May 4 letter by letter dated May, 1987. A copy of my responsive letter is attached hereto as Exhibit 9 and is incorporated fully herein by this reference. That letter advised McDonald's that the advertisements were deceptive in a number of ways and had to be discontinued.

16. The April 27 and May 3 letters fully and accurately state the position of the Attorney General of Texas. I cannot speak for the opinions of the other two Attorneys General, solely because I was not their employee at the time.

17. Further discussions with McDonald's then ensued. We've made it clear to McDonald's that the advertisements were deceptive and illegal both as a whole and in certain specifics. For example, one advertisetment claimed that sodium was "down across the menu." Because sodium had only been reduced in a relatively small minority of the products sold by McDonald's and because many of McDonald's products continued to contain in one item more than half of the sodium that health prefessionals recommend for an average person's total consumption in an entire day we concluded that this specific statement was deceptive and false and therefore illegal.

18. In another example, an advertisement for milk shakes said that McDonald's shakes contained "Wholesome milk, natural sweeteners, a fluid ounce of flavoring, and stabilizers for consistency and that's all." The truth was somewhat different - the shakes contained an artificial flavoring and the chemical preservatives sodium benzoate and sodium hexametaphosphate. McDonald's did not dispute the fact that the shakes contained artificial flavoring or the chemical preservative sodium benzoate; it solely responded that sodium hexametaphosphate was a stabilizer and not a preservative (albeit nonetheless an artificial one).
With this minor correction of the facts in mind, we reevaluated the advertisement and affirmed our prior conclusion that the milk shake advertisement was false-because it falsely omitted the presence of an artificial chemical preservative - as well as deceptive - because it failed to disclose the material facts that these supposedly wholesome milk shakes contained an artificial flavoring and an artificial stabilizer.

19. In a third example. One of McDonald's advertisements sought to reassure customers about cholesterol. Although the advertisement focused on french fries. McDonald's also chose to include information on its regular hamburger in the pictorial portion of the advertisement. That portion of the advertisement emphasized the relatively low cholesterol content of the regular hamburger but failed to disclose that hamburger's significant saturated fat content. McDonald's response to this example was in essence to deny its existence. McDonald's emphasized that the hamburger was not mentioned in the text of the advertisement.

20. McDonald's response to this charge provides an excellent demonstration of the difference between a false statement and a misleading and deceptive one. As can be seen from a reference to the advertisement itself, attached to Exhibit 7, the cholesterol information about the regular hamburger is given in a chart that is a prominent part of the advertisement and not in the text of the advertisement. Therefore, it is literally true for McDonald's to say that the regular hamburger is not mentioned in the text, but it is also misleading and deceptive for McDonald's to so declare, because the advertisement in fact contains the very claims about which we complained. Because a pictorial portion of a print advertisement is usually more noticed than the text of the advertisement and because the law requires that the message of the advertisement must be considered as a whole as well as in individual components, we continued to believe that McDonald's advertisement was deceptive because it failed to disclose the material fact that the regular hamburger contained significant amounts of saturated fat.

21. These three examples were intended only to give McDonalds specific instances of ways in which their advertising was deceptive. We continued to believe and continued to advise McDonald's that, in addition to these and other specific instances of falsity or deception, McDonald's entire nutrition advertising campaign was deceptive across the board and was therefore in violation of our state laws, because it falsely and deceptively represented that McDonald's food was nutritious as a whole.

22. McDonald's assured us that it had already stopped using these deceptive advertising, without admission of liability. We therefore decided that further action would not be required. It was a nearly-uniform aspect of settlements with the Office that a resolution without litigation was not required to include an admision of illegal behavior. It was also a frequent practice to resolve investigations involving false or deceptive advertising with an assurance from the company that the offending advertisements would not be used again in the future. We received this assurance from Mc Donald's in this matter and, to the best of my knowledge formed after monitoring for compliance, the advertisements did not appear again in the future (possibly aside from publications that could not be stopped because they were too far along in their printing process).




SWORN TO AND SUBSCRIBED BEFORE ME THIS 12TH DAY OF JULY 1994

Julie Rosiles

Notary Public in and for the State of Texas
United States of America


date signed: July 12, 1994

status: Appeared in court

references: Not applicable/ available

exhibits: exhibits available here

transcripts of court appearances:

related links:

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