Day Eleven of Closing Speech for the defence

4th Nov 96 - Day 293 of the Trial

Justice Bell made a ruling concerning the trial timetable, limiting the way the defendants could put their submissions, and limiting the time allowed for them.

Mr Morris then went on to state two important admissions made in May 1994 by the McDonald's. In 1989 the Portland, Oregon state authorities introduced a ban on disposable foam packaging. McDonald's took them to court but lost the case. Additionally in Australia McDonald's had to give a written undertaking to the Federal Trades Commission that they would cease marketing their packaging made with HCFC's as 'ozone friendly' - this too was in 1989.

Referring back to the judge's request of last week, Mr Morris then produced some examples of McDonald's packaging that, in Mr Morris' opinion, was typical of McDonald's deceptive and misleading portrayal of it's products regarding recycling. The contents of the exhibit showed several types of packaging and had been an exhibit during the packaging period of the trial some 18 months ago. Mr Justice Bell (unsure as to the exact exhibit) indicated to the plaintiff that on Waterloo Bridge:

"This is not a dig, I have inspected some packaging which I have found beneath my feet"

Mr Rampton said that:

"As long as your lordship did not put it there, it does not matter."

The various items of packaging, were according to Mr Morris said to be deceptive as they led the consumer to believe that it (the packaging) was 100% recycled material and/or was 'recyclable' - this was not the case Mr Morris said. Backing up his argument Mr Morris said that the Advertising Standards Authority had prevented McDonald's making further claims in their advertising about the 'recyclability' of their packaging when they themselves were not recycling any. But they continued to make such deceptive claims on the packaging itself. He explained such deception would be outlawed in the USA.

A McDonald's document held up by Mr Morris stated it was 'made from recycled paper', yet it was only 10% 'post consumer' recycled, and 40% 'post-industrial' content. product. Mr Morris said that his understanding and that of the public is that when it says 'recycled' it means 100% recycled, and that, as McDonald's USA had accepted, it had to contain a 'substantial' percentage of 'post-consumer' content. In the USA McDonald's have in recent years been forced to put the level of post-consumer and pre-consumer material on their packaging, Mr Morris added:

"I think the point that Ms. Steel made is the important point, that the overall impression given by the company that, is of one of the company using recycled materials and committed to it when in fact that situation is, has only been the case in recent years, and we will say even now, the amount of genuine recycled content in McDonald's packaging is still much less than half." Mr Morris said that not a single European product of packaging that was called 'recycled' would be allowed, by McDonald's own definition, to be called 'recycled' in the USA.

He quoted McDonald's own witnesses who had accepted that it was only in the 1990s that the company had begun to respond to public concerns by using recycled paper materials. "So effectively, at that time [before the writs were served in 1990], there was virtually no recycled content in McDonald's packaging."

McDonald's had admitted that recycling polystyrene was now feasible, yet McDonald's were not doing anything about this in the UK (or elsewhere), despite claiming to have pilot recycling schemes. Mr Morris said that once the UK scheme became feasible they dropped the scheme - this, according to Mr Morris was a double indication that they (McDonald's) were not serious about recycling.

Then using the unusual example of Holland where McDonald's say 90% of all in-store waste is recycled, Mr Morris said that this: "only emphasises the fact that it is possible to do it in all their countries."

Mr Morris then referred to a McDonald's memo. At a high level McDonald's 'Waste versus Disposables' meeting which had representatives from Sweden, Switzerland, Germany and Holland, McDonald's recognised that they were under legislative and public pressure in some countries to end their disposable packaging. The purpose of this meeting was to formulate a PR reaction to these environmental and legislative concerns. Mr Morris said that the memo was additionally revealing because in the U.K. waste was not yet an important issue for them but that it was important to be SEEN to pre-empt and to take the moral high ground.

In every store, Mr Morris went on, 140 pounds of waste packaging (on average) was produced every day. As there are some 20,000 stores worldwide this represents some 2,800,000 pounds every day worldwide and some 1,022,000,000 pounds worldwide every year. It was unclear, Mr Morris said, whether this astronomical figure (approx. 500,000 tons!) included waste that was taken out of the store - so the figure could in fact be much higher. Additionally, Mr Morris pointed out, these figures and others relating to packaging and waste, never made it clear if transport packaging was included, which would of course add to the overall packaging.

McDonald's claim, Mr Morris revealed, that some 90,000,000 pounds of their US packaging was 'post-consumer' recycled material - Mr Morris stated that it had been demonstrated that the 90 million pounds represented 40% of the recycling content of the recycled items but that it is less than 20% of the total US packaging volume - this was in 1992 he said.


Mr Morris summed up evidence from Mr Mallinson of the Timber Trades Federation (witness for the plaintiff):

"... he admitted that "ecological sustainability was" seldom if ever on the agenda of either government or industrial organisations before 1988, 1989. And that sustainability should be not just a question of the amount of trees physically available in a forest or in a country, but it was a question of being sustainably managed to meet the social, ecological, economic and spiritual needs of present and future generations."

Mr Mallinson was also referred to by Mr Morris with regard to ecological sustainability, the witness agreeing that before 1988, these considerations seldom if ever were on the agendas of government's or private industry. Mr Morris also felt that Mr Mallinson's claim that the timber industry was 'getting better' indicated the bad situation that existed at the time of the writ and further strengthened the defence's case.

Mr Morris began the afternoon session with the question: "What kind of area of forest is needed to keep McDonald's provided with paper for its paper usage each year?"

The forestry experts who'd had testified for each side had agreed that in order for a 'forest' to be sustainable it had to have a 'cycle' period. Mr Morris went on state that in Finland, a major source of McDonald's European virgin paper supplies, their suppliers had stated that there was a 100 year cycle. The importance of the 'cycle' was that it was a length of time that represented the turnaround of the forest and had to be had to be set/identified for the sustainable management of the plantation. This means the length of time for the forest to become mature, be continuously deforested, yet the overall area remain the same. If the forest were not of a sufficient size then excessive deforestation would ensure that the plantation did not last long and was not sustainable - there had to be a sufficient length of time for sufficient areas of the forest to mature in order for it to be deforested/logged without this logging having a detrimental effect on the overall area of forest, Mr Morris explained.

Mr Mallinson's had testified that McDonald's material was almost totally from thinnings and toppings of trees raised in monoculture plantations. There had been some confusion over just how long the forest cycle had to be. Mr Mallinson had been reluctant to agree the whole defence case, but Mr Morris claimed an admission that something like the area needed would be 80 or 100 times the sheer cubic feet of trees actually cut down each year to remain a 'sustainable' plantation. Justice Bell seemed not to accept this. Mr Rampton, refuted it outright, stating that later in his evidence the witness had said that it was not the case.

In thinking on this point Justice Bell (with both Mr Mallinson's 'admission' yet later 'retraction') was surprisingly willing and fast to accept Mr Rampton's view, refuting the defence's claim that, as a McDonald's representative, he would not want to harm or damage the company so it would be more likely that a reluctant admission was of more weight than an unclear and evasive retraction.

Interestingly, Mr Rampton added that the Factsheet's sentence: 'It takes 800 square miles of forest to keep McDonald's supplied with paper for one year' would be OK if it appeared in a specialist forestry publication, but not in a public leaflet (as ordinary people would not be able to understand the technicalities of the forest cover needed in plantation forests). Hence McDonald's were suing the defendants over it!

Mr Morris went on to claim that calculating the necessary area needed to supply McDonald's was difficult, because so many considerations along the line of production were not usually taken into account. McDonald's used figures based on the volume of packaging, and the cubic feet of material used set against how much wood volume on average there would be per acre in a plantation. McDonald's had thereby come up with a figure of 9.4 sq miles of virgin wood (USA, 1992, not including 50% 'recycled' material), and maybe double this worldwide. This didn't include much packaging (about a third) which was not handled by Perseco Ltd, McDonald's main suppliers.

However, Mr Morris explained (using admissions and information obtained in the case) that to get the total forest area actually needing to be available to provide the end-product, it was necessary to take the approx 20 sq miles starting figure and add the lack of the real recycled content (which was a tiny amount in 1990) and the third of packaging from other suppliers. Then take into account the 10% of timber generally left on the forest floor), the fact that only 40% of forest is used for pulpwood, that over 10% of forest area is set aside for paths, rivers and amenities etc, that maybe half of all wood is lost in production (official figures used - 1,770 tons of pulp only made 1,000 tons of carton board, and in the moulding process more material was lost said Mr Morris), and finally and most importantly the fact that the true forest area set aside for industrial uses must be based on the life-cycle (50 - 100 years depending on the region etc).

Therefore the true figure of commercial managed forest area needed under plantation to keep supplying McDonald's paper packaging needs every year is, calculated Mr Morris, 20 sq mls X 1.5 (other suppliers) X 1.7 (non-recycled content) X 1.1 (left in forest) X 2.5 (non-pulpwood uses) X 1.1 (forest area not used) X 2 (material lost in production) X 80 - 100 (sustainable area) = 'approximately 10 - 20,000 sq miles' he said. [It is in fact 24,684 - 30,855 sq miles].

Justice Bell commented during the ensuing discussion that:

"Yes, but it was not put that if the life cycle was 40 years you would need 40 times the area, if it was eighty years, you would need eighty times the area or if it was a hundred years, you would need a hundred times the area. I mean, this is Morris on forestry, not a witness on forestry." Mr Morris then referred the court to the transcripts of Mr Mallinson (see earlier in this Bulletin)

Justice Bell later added that if the leaflet was referring to the area of sustainable forest necessary to produce a healthy forest in the best ecological way, then the area quoted in the leaflet was understandable. If the leaflet means that this is the area ACTUALLY physically chopped down each year, he did not feel it had been proven. Just which 'meaning' the leaflet has, Judge Bell had to decide upon.

In any event, Mr Morris explained, the important thing is that the public get to know the TRUTH, and the case should be about that, not legal tricks or technicalities.

To give an idea of the mass of packaging created by the company, Ms Steel referred to a document produced by McDonald's UK in 1985. This claimed that if all the hamburgers sold by McDonald's since 1955 were lined up end to end they would stretch to the moon and back 5 times. Ms Steel said that she wouldn't like to hazard a guess as to how many times the packaging would stretch to the moon and back now, bearing in mind that the packaging was in any event bigger than the burgers and that the company had expanded massively since 1985. She also pointed out that whereas hamburgers were eaten, packaging actually stayed around a lot longer, maybe forever.

Mr Morris ended packaging with:

"we conclude that we have demonstrated that McDonald's packaging use is damaging to the environment basically. And that they have tried to give the impression that they are concerned about the environment without any kind of real commitment to it."

Mr Morris was asked to outline his expected schedule for the forthcoming topic of food poisoning. Expecting it to take two days, the court was adjourned until 12 midday, Tuesday 5th November 1996.

Note:Due to the unavailability of the official court transcripts at this time, this report has not been checked for accuracy against the transcripts but was complied from extensive notes taken during the day by volunteers.
See also: The report for the previous day
The report for the following day
and, for summaries of all the key evidence given during the trial;
Trial News 1, Trial News 2, and Trial News 3