Day Seventeen of Closing Speech for the defence

Wednesday, 13th Nov 96 - Day 299 of the Trial


Ms Steel started the summing up of the Advertising section of the trial by going through the relevant section of the leaflet. Referring to the 'Getting the chemistry right' box, this stated that stripey staff uniforms, flashy lighting, bright plastic decor, happy hats and musak are all part of the gimmicky dressing up of low quality food. She indicacted that she could not see how there could be any disagreement that McDonald's used those things and that whether or not they were gimmicks was a matter of opinion. Other gimmicks such as paper hats and straws and balloons were referred to later in the leaflet. Ms Steel said the defendants would also include happy meals, toys and other promotional items as gimmickry. And, she added, another gimmick is the artificial colouring of food to make it more appealing and more attractive, such as in the milkshakes and so on. She stated that the court had heard evidence that people are more likely to buy the food if it is artificially coloured and that was the reason why the company does it.

On the subject of the use of chemicals to dress up low quality food in order to sell more of it, Ms Steel reminded the court that McDonald's had made a formal admission in the case in 1993 that "McDonald's pride themselves on the uniformity of their products throughout the world and that in order to achieve that uniformity they have set formula and specifications for menu items and use a number of additives in the preparation of their food." In terms of whether or not the food is low quality, Ms Steel said there were really two aspects, one was the nutritional aspect, which had really been covered by the nutritional side of the case. Which is that the food is high in fat, sodium and sugar, and low in fibre, vitamins and minerals and therefore can be deemed to be low quality in terms of nutritional value. The second aspect was more of a comment, which was that it is a commonly perceived opinion that the meat that goes into hamburgers is the low quality meat and, said Ms Steel, the court had heard from the Plaintiffs' own witnesses that they used the cheaper cuts of meat. Additionally, there was a perception amongst probably quite a sizeable part of the population that the sort of food that McDonald's sells is junk food and that junk food is what people would view as low quality food. She continued "It is clear from the McDonald's admission, that they do design the food down to the last detail to look and feel and taste exactly the same in every outlet in the world. It is fair enough to call that artificial conformity".

The section of the leaflet headed "How do McDonald's deliberately exploit children?" really stated that McDonald's uses a substantial amount of advertising targeted at children, whose purpose is to encourage children to think that McDonald's is a part of everyday life and hence that they are not 'normal' if they do not go there. Ms Steel said it shold be noted that 'normal' was in inverted commas in the leaflet and it was clearly talking about normal in the sense of fitting in with your peers and being accepted by your peers. The Judge added 'being the odd one out if you do not' which Ms Steel agreed with. The leaflet went on to say that the use of such advertising and gimmickry, is done with the knowledge that it will result in children pressurizeing their parents into taking them to McDonald's.

Moving on in the leaflet to 'McDonald's promote the consumption of their meals as a 'fun event', Ms Steel beleived this had been accepted by just about every witness for McDonald's, they had talked about the fun experience, how the experience was all part of coming to eat at McDonald's. The leaflet then talked about this reducing the food itself to the status of a prop in the mind of children. It was the fun experience they are going for, the food is just by the by really.

Then the leaflet stated that not a lot of children are interested in nutrition and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they are seduced into eating is at best mediocre and at worst poisonous, and their parents know it is not even cheap. Ms Steel said that effectively, this was about McDonald's promoting the consumption of their meals as a fun event, to cover up for the inadequacy of their products. Meals which are at best mediocre, meant they are nothing special, they are pretty average, by way of taste, whatever, they are certainly not beneficial for your health. At worst poisonous meant that in the worst case scenario, they can have a detrimental effect on your health. Either through long term effects, and their contribution to degenerative diseases. If the food people were eating was contributing to these diseases such as heart disease and cancer, then it could be said it was slowly poisoning you. Or alternatively that you could risk getting food poisoning and that was something that would have an immediate poisonous effect. Ms Steel added that "we know there has been the worst case scenario on more than one occasion, but just by way of one example, the outbreak of E Coli food poisoning in Preston which McDonald's has admitted" [McDonald's made a formal admission in the case that "in January 1991 a number of people suffered food poisoning after eating burgers from McDonald's in Preston. Some had severe medical problems requiring hospitalisation"]

After running through the text Ms Steel said that overall the 'sting' of this section of the leaflet is that McDonald's are deliberately exploiting children through their use of advertising and gimmicks which encourage children to pester their parents into taking them to McDonald's to eat junk food.

Ms Steel went on to say there were four main questions in the trial arising from this section:

Ms Steel then moved on to cover some of the general evidence about advertising which had come out during the trial. In 1993, McDonald's worldwide expenditure for advertising and promotions totalled 1.4 billion dollars, (about 6 percent of sales). 870 million dollars was spent annually in the USA alone. McDonald's UK spent approximately 35 million pounds per year on advertising. In 1995 the figure for worldwide advertising and promotions had gone up to $1.8billion. Ms Steel said it was clear from this that McDonald's are bombarding the public, both children and adults, with a huge amount of advertising. The court had seen figures showing that McDonald's were vieing with Coca Cola for the two top positions of the most advertised brand in the world. Sometimes McDonald's were coming first, sometimes Coca-cola were coming first. Ms Steel considered that this whole section of the case should be taken in the context of the massive amount that they spend overall on advertising

Mr. Hawkes who was McDonald's UK chief marketing officer, had said that the purpose of advertising was 'communication' and 'persuasion', in order to foster 'brand awareness' and 'loyalty' in order to increase sales. He also said 'you have to keep your name in front of people's minds', and, 'without advertising, you might see the company decline completely'. Ms Steel said it was clear that this relates to children as well as adults and that it is all about persuading people to buy something which they would not otherwise buy. Ms Steel said that the effect of the admission was, that without advertising you might see the company decline completely. She constinued by saying that if the products that McDonald's were selling were so good, and so necessary to people, then they would not need to advertise. She claimed that the reality is that the company is based entirely on hype and, effectively brainwashing. The quote that you 'have to keep your name in the front of people's minds', sums it all up really. It is all about getting into people's minds and making them think about the McDonald's company. And that applies to children as well as adults.

Mr. Hawkes had also stated that McDonald's concentrated on TV as the "most powerful advertising medium". In the UK the company advertises on TV to children, he referred particularly to two to eight year olds, most weeks of the year. The defendants described as 'sinister' Mr. Hawkes' hope that teaching children McDonald's songs would "keep the memory of McDonald's at the forefront of their minds, so they can again ask their parents if they can come to McDonald's." Ms Steel said this was clear manipulation and exploitation of children through the use of their advertising. Mr. Hawkes had also said that the company did not target 8 to 15 year olds so much, and that "at that age they do not pester their parents to go to McDonald's, it does not work in the same way". Ms Steel said in her view this was a clear admission that they consider advertising to two to eight year olds to be particularly effective because they go and pester their parents to take them to McDonald's.

The court had also heard from Mr Hawkes that it was a "tactic" of McDonald's "to reach families through children" and that this was shown by the fact that when McDonald's started up in a new region or country, the company would at first advertise exclusively to children, this had included Scotland a few years ago.

Continuing, Ms Steel said that extracts from the confidential 'Operations Manual' gave a good insight into McDonald's strategy. Ms Steel quoted to the court:

and that offering toys is "one of the best things ... to make them loyal supporters" and that birthday parties are "an important way to generate added sales and profits." Additionally Ronald McDonald:

Ms Steel said that this whole picture was manipulation of childrens' emotions, exploitation of children in general and was extremely sinister. Further on that point, the evidence of Geoffrey Guiliano, who's statement was read out in court, was worth taking into consideration. A former Ronald McDonald actor during the 1980, he was a person who had spent years promoting McDonald's food, and persuading children to go to McDonald's. When he quit the job he had publicly apologised, stating:

Ms Steel said it was clear that his view is that that the use of Ronald McDonald is effectively a brainwashing technique.

Ms Steel then went on to say that McDonald's Golden Arches code, their internal code for their advertisements states that one of their aims is to make people feel 'a warm empathy towards the commercial' and therefore, David Green, McDonald's Senior Vice President of Marketing in the USA agreed, 'feel an empathy towards the company'. This was manipulation of people's emotions said Ms Steel. Mr Green's view was that children were 'virgin ground as far as marketing is concerned'. He also recognised that McDonald's 'could change people's eating habits' which, said Ms Steel, would include children, who were going to be very susceptible to influence from advertising messages and from messages coming from the clown who was designed to appeal to them, and tell them how much he loved McDonald's food.

Moving onto the evidence of Mr Beavers he had stated that, back in the 1960's, McDonald's were "the trendsetters in the food industry, in particular the fast food service industry, in utilising national television"... "It was at that time that we introduced Ronald McDonald". He had accepted that "no other marketing factor has been more important in distinguishing McDonald's as a leader in fast food than its early decision to appeal to children through advertising." He agreed that "in the early days [the company] probably did" spend more of its advertising budget on children's ads, and stated "within a short period of time Ronald was one of the most well known, popular characters in America". This was revealed in J.Love's book 'Behind the Arches' - written with the authorisation and co-operation of McDonald's.

Ms Steel then referred to a survey carried out for McDonald's which revealed that "McDonald's is more likely to be chosen than its competitors in response to kids pestering". Mr Fairgrieve had said that the company had known this for several years and had stated that "this is broadly a positive from our perspective. It is the kind of thing you just tick off as you go through. It is like 'Well, that is OK'" Ms Steel said it was clear from this that children pestering their parents to take them to McDonald's was fine as far as the company was concerned. She added "bearing in mind that they are quite happy about it, and they have been aware that it goes on for years, you might wonder why it was they decided to sue us over that and allege that it was defamatory and libelous".

Referring to a section of the leaflet which talks about children 'living out the adverts', Ms Steel said that the evidence of Mr Fairgrieve about personal appearances of by the Ronald McDonald clown, showed this was true. He had stated "Quite simply, the idea of having a personal appearance programme for Ronald McDonald is to bring the McDonald's experience as seen in the advertising fully alive in the restaurant with a physical realisation of the character and positioning we have in the advertising."

Ms Steel added to these admissions by referring to the evidence of Juliet Gellatley, former Director of Youth Education and Campaigns of the Vegetarian Society, who had given evidence for the Defence. As Director for Youth Education she gave talks to about 30,000 children of all ages at 500 classroom debates, and also to thousands of adults as well on vegetarianism and related issues. Following the talks children discussed changing their diets. On many occasions, of those interested in "going vegetarian" some felt they couldn't because they would be the "odd one out" or "be laughed at" if they couldn't go to McDonald's.

Ms Gellately had indicated that they (the children) often indicated that this was "because of the hype" and when questioned further they talked about McDonald's advertisements which they had seen. She had stated, Ms Steel said, that she had been surprised that "McDonald's was the only burger chain specifically mentioned" in any of the talks, and that it came up "so often."

Ms Gellatley had also stated that McDonald's claim that they don't exploit children because "children are never encouraged to ask their parents to bring them to McDonald's" was "farcical". "Clearly the main purpose of advertising aimed at 2 to 8 year olds is precisely to encourage children to ask their parents to take them to McDonald's, otherwise what would be the point in advertising directly to such young children".

Sue Dibb from the National Food Alliance who was employed to research the effects of food advertising to children had related how the NFA had called for a ban on advertising of sugary and fatty foods at times when large numbers of children were likely to be watching television. She gave examples of how that had happened in other countries. Ms Steel said that whatever the court's view on these bans, there is certainly a wide section of the population who do view these types of advertisements as being undesirable, and so obviously we should be entitled to express that view as well.

Ms Dibb believed that in the debate over the future of food advertising "public health should be given priority" over the wishes of advertisers. Ms Steel added that obviously "our position would be that people's health is far more important than the wish of companies like McDonald's to use advertising to increase their profits".

Ms Steel reminded the court of a section in the McDonald's UK Annual Review entitled "Growing up together". It stated: "McDonald's involvement with schools in the past has been primarily through our local restaurants. However our support for education took a major step forward in 1993 with the creation of McDonald's education service".... "We view every young person not only as a customer but as a possible employee, manager, supplier or business leader in tomorrow's Britain".

The Review went on to talk about links between schools and businesses and gave an example of Berkeley Infants School in Scunthorpe, "The school then based its autumn term work on McDonald's. This included maths, history, music, dance and language classes. Three McDonald's 'restaurants' were set up and children as young as four started to develop and understanding of business". Mr Fairgrieve, McDonald's UK Marketing services manager had said that this came under the umbrella of the Public Relations Department. The defendant's view was that it was effectively advertising as well. It was all about McDonald's being a part of normal everyday life, and if you are taught something in school, you do tend to accept it as part of every day life.

Ms Steel moved back to some of the evidence of John Hawkes, and questioned why it was that Mr Hawkes had been called to give evidence at all since he had only taken over as chief marketing officer of McDonald's 3 or 4 months before he gave evidence, and it would have been more appropriate for the evidence to be given by Micheal Hayden who had made the original statement for this section.

Ms Steel said that:

Ms Steel then referred to two charts supplied to the court by McDonald's. The first showed that in 1987 in 7 out of 10 TV regions throughout the UK more weeks of McDonald's advertising to children were broadcast than to adults. Taking the Border region alone (in Scotland) in 1987 there were 2 weeks of advertisements to children whilst there were none at all to adults. In the Central region (in Scotland) there were 3 weeks of advertisements ot children and again none to adults. It appeared that McDonald's must have moved into Scotland around this time.

In 1988 in all the TV regions there were more weeks of advertising to children than there were to adults. In the Border region there were 42 weeks of advertisements to children and a mere 8 weeks to adults, whilst in the Central region, the ration was 41:6 and in the Grampian region it was 41:4! In 1989 and 1990 there were again more weeks of adverts to children than to adults in all the regions.

Mr Hawkes had said that in new areas McDonald's only advertised to children and he said about that," one of the tactics is to reach families through children". He said if there was a new market a whole new region which had not previously received any advertising then the company would introduce the Ronald McDonald character prior, prior to everything else.

Mr. Hawkes said that Ronald has been around in the UK since the company started here, that he is still a useful sales tool, a strong marketing tool and that for that reason, it was McDonald's intention to go on using him on television and for personal appearances.

Mr. Hawkes agreed that a big factor in terms of influencing behaviour of children was their peers and wanting to fit in with the crowd. Ms Steel referred to a McDonald's advertisement where a child spoke the lines that "you haven't lived if you haven't been to McDonald's". Mr. Hawkes said he thought this was common terminology and that children would say that, and he was "sure that they would use it about McDonald's". Ms Steel said this was effectively saying exactly what the leaflet says, that McDonald's adverts would convey to children that they were not 'normal', if they did not go to McDonald's.

Moving onto 'Pester power' Ms Steel began by quoting from the Independent Television Commission's Code of Practices (No.5). Simply, ads must not exhort children to purchase or ask their parents or others to make enquiries or purchases. In his evidence Mr Hawkes had said that he did not recall ANY of their adverts being refused on these gronds and therefore there was nothing wrong with McDonald's ads. However, Ms Steel said that this was ridiculous as whilst there might not be specific statements in the ads telling children to ask their parents, it is obvious that this IS the purpose - especially to the 2 - 8 age group. There would be absolutely no point in advertising if the children were not going to ask their parents to make purchases on their behalf, for them.

Mr Hawkes himself had admitted as much when he stated the purpose Ronald McDonald was

In other words, said Ms Steel, their own stated purpose of the use of Ronald McDonald is to get children to pester their parents. Mr. Hawkes said that obviously the Ronald advertising was designed to appeal to children and therefore appeal to them to go to McDonald's and that was the reason that they did the advertising. He said that it was to get their parents to buy them food.

At this point Ms Steel reminded the court that Justice Bell had provided a summary of the effect of Mr Hawkes' evidence at the time:

When this had been put to Mr Hawkes and whether he had any issue with it, he had said 'no'.

A discussion then followed about McDonald's use of Happy Meals and adverts using cartoon characters which depict food items, to create a picture in the minds of children of going to McDonald's for fun rather than to eat the food. This led to Justice Bell stating in court today:

Ms Steel said she was not saying that the children did not like the food at all, just that "they would not be so keen on eating it so frequently if McDonald's were not continually bombarding them with advertising" and that "a big part of it is for the experience, for living out the advertisements after this picture has been created in their minds."

At the end of the day Mr Morris made some additional points. He referred to to the counterclaim against McDonald's over their 'Press Release', which accused the defendants of being liars. He said McDonald's DOES aim most of its advertisements at children as Ms Steel had shown, whether solely at children or during cross-over time and therefore the ruling on the counterclaim should be in the defence's favour.

Mr Morris then added a point about the advertising portraying McDonald's as normality. He said "this may sound so obvious as to not even know why I am bringing it up. In McDonald's adverts there are no dissenting or unhappy children not wanting to go to McDonald's or not being interested. All the children in all the ads are all portrayed as people who love McDonald's and want to go there. That is not really surprising...", at this point the Judge interrupted and said "They are not going to make it attractive by having a few dissenting children waving their banners in the background". Mr Morris continued "The thing is, although it is so obvious, that would be a criticism of any advert by any company, it still does not make it a not valid criticism, which is that they are presenting a false picture and trying to portray it as a normal thing, that all children like McDonald's."

Finally, Mr Morris said that McDonald's advertising:

The court adjourned until 10 a.m. Thursday morning.

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