Day 300 opened with Ms Steel referring to the testimony of Ms Dibb (expert witness for the defence) who was the National Food Alliance project officer for their working party on food advertising, which included carrying out negotiations and making submissions to the advertising regulatory bodies. She had written a report published by the National Food Alliance, entitled 'Children - Advertisers Dream, Nutrition Nightmare' which looked at children's diets and the influences on their diets including advertising.
She had referred to two surveys, Ms Steel told the court, which had been carried out for the food commission, which had monitored a week of advertising on children's television (M-F 4-5.10pm & Sat 8am-1pm). The first survey in February 1990 had found that food and soft drinks accounted for 53% of the adverts, and in approximately 10 hours of viewing there were 92 advertisements for food and drink. 78% of all the food and drink advertisements were for products high in sugars or fats or both. There were no advertisements at all for more healthy foods such as fruit and vegetables. McDonald's food was the 5th most advertised food during that period.
The second survey in May 1992 had found that food and soft drinks accounted for 47% of adverts shown during the period and that food high in sugars and/or fats made up approximately four fifths of the food advertised. There were no advertisements for unsweetened cereals or fruit and vegetables. During that period McDonald's was joint second in terms of the most heavily advertised food product.
Ms Dibb's view was that the advertising regulatory bodies should look at the overall cumulative effect of advertising, not just at individual adverts. Overall children were getting a message from the advertisements that was very different to the nutritional messages that were being encouraged by government reports and policies as to what constitutes a healthy balanced diet. She said that the effects of advertising this limited range of food products was to make fatty and sugary food more attractive and more desirable to children than foods which were not advertised.
Ms Dibb had referred to an Advertising Industry seminar entitled 'Pester Power - How to reach kids in 1994', which was a conference for people, companies and the advertising industry in general, who wanted to learn the most successful techniques of how to advertise to children. Ms Steel said it was clear from the title of the conference that the advertising industry in general does set out to target children throughout advertising, with the aim of getting them to pester their parents into buying things which they didn't want to buy and that obviously, McDonald's were a part of this.
Ms Dibb was asked about the quote in the company's Operations Manual about using children's love of Ronald to bring children into the store to buy the food or to get their parents to buy them food. In her view it appeared to be a direct exhortation to managers to use children's emotions and their love for Ronald to bring them into the restaurant, and as such she did not think it was ethical. Ms Steel added 'we consider it to be exploitation of children's emotions'.
Ms Dibb had referred to McDonald's documents which showed that McDonald's adverts to children were shown 41 weeks out of 52 in 1988. She said that in her experience, she would say what that level of advertising is amongst the highest for its regularity. She said that the effect of that was to have a fairly constant reminder to children of McDonald's and to present McDonald's as omnipresent.
Ms Dibb had gone on to state that an advertising industry magazine recorded that McDonald's was the second largest brand advertiser, and spent £27 million on 'above line' advertising in 1993 whilst their nearest competitor, Burger King, spent £6.5 million.
Ms Dibb referred to a study which showed that children were three times as likely as adults to recall adverts, and that a single exposure may have a natural life-span of some two weeks before it was lost from memory. Ms Dibb said the effect of McDonald's advertising 40 weeks in a year, was that they would certainly ensure that the company was not going to be lost from memory. The study went on to say, that if the advertisement was reinforced by a second advertisement the child may still have an effective recall after four weeks. Ms Steel said effectively, if McDonald's are advertising about 40 out of every 52 weeks in a year, bearing in mind that the twelve weeks without advertisements do not all come together, effectively, children are going to be continuously reminded of McDonald's through advertising. She said this was obviously what the company has set out to do, it wants to make sure it stays permanently in the minds of children. The defendants view was that this was a sinister practice since it was manipulating children's minds to be constantly thinking of a company which does not have any concern for them, it is just interested in making profits out of them. Ms Steel added that even if this was not unusual because other companies might be doing the same, that did not mean people did not have the right to criticise it.
Ms Dibb had stated that advertising does influence children's perception of food and their preferences and choices. This, she said, was hardly surprising since that was the intended objective of adverts.
Additionally obvious but also noteworthy is that children are more likely to choose an advertised product over that of an unadvertised one, Ms Steel said.
"The potency of advertisements to children was apparent in the ban on confectionary advertisements in Holland before 8 pm. Meanwhile in Sweden and Canada no advertising was allowed to children during children's programmes and in France children were not allowed to be used in food advertisements until 1992 (and then because of a European directive)."
The relevancy of this, Ms Steel told the court, was that it was not an unreasonable view to hold that children should not be subject to advertisements, because they are young and impressionable and their emotions and minds are more easily manipulated. They should therefore have protection from companies who are basically just after using them to make their profits.
UK & US Government committee's had also recommended restrictions or bans on advertising to children, but had backed down after intervention and complaints from the advertising industry about loss of revenue. Ms Steel said this was all about commercial interests coming before protection of children.
Ms Dibb had criticised the provision of vouchers in schools to participate in school sports etc because it was advertising 'in a covert way'. Sponsorship was seen in a more positive light than advertising. It was increasing as companies think that being associated with a particular organisation or project will enable their company to be seen in a more positive light. And that by being seen in a good light it would deflect criticisms that may be raised about that company or it might mitigate against the criticisms. Additionally it generated 'goodwill' towards the company which was good for business.
Ms Steel went on to refer to more of the evidence of David Green. He had agreed that McDonald's had pioneered unusual marketing methods which had been copied by others. He had also stated that both adults and children would see several McDonald's advertisements every week.
Mr Green had admitted that children were impressionable, Ms Steel said. She hoped that this would mean that Mr Rampton would desist from the line that children were NOT impressionable.
Mr Green had also given testimony that 'tweens' (those aged between 9 - 16 years of age) and that the adverts make them feel that McDonald's understands them. This, Ms Steel said, was manipulation of children's emotions.
She said that:
Mr Green had gone on to admit that charitable and community activity was a "benefit to the company" and it was "good business" which gained free publicity.
Additionally educational programmes and promotions in schools generate better feelings towards McDonald's and lead to more patronage, Mr Green said.
"Somewhat surprisingly, Mr Green had defended targeting kids up to eight years of age and said 'Ronald is a friend'. Ms Steel said that she found this 'sickening'. McDonald's was pretending this figure was a friend when in reality it is just there to promote McDonald's and raise its profits."
When questioning Mr Green about the McDonaldland set, which portrays happy burgers growing on plants, the defendants had asked why McDonald's did not put the truth concerning the slaughter of animals for burgers in their advertisements. Mr Green had said it would have been unappetising. This, Ms Steel said, was obvious, but:
The power of the unintended pun seemed to pass above the heads of the representatives legal establishment.
Mr Green had also admitted in court that McDonald's COULD change people's eating habits and that children were "virgin ground as far as marketing is concerned."
After lunch Ms Steel presented to the court the fact that Mr Rampton had during the evidence of Mr Green, asked him if he saw pester power as being a 'prinicipal function of McDonald's advertisements to children'. Mr Green had replied no 'but it certainly does happen.' Ms Steel suggested that perhaps Mr Rampton had chosen the word 'principal' deliberately. Nevertheless, this was an admission that 'pester power' was an effect of the adverts.
Mr Justice Bell then said that:
Earlier in the day, Mr Rampton had attempted to argue in court that children were no more impressionable than adults. On this point Ms Steel now retorted with the fact that in examining Mr Green the judge himself had asked:
Mr Green had replied:
He went on:
For Ms Steel this succinctly revealed another admission:
Moving onto the testimony of Mr Kenneth Miles (expert witness for the plaintiffs), Ms Steel said he had claimed that advertising was a relatively small influence on people's food choices, yet he had later accepted that a particular milk advert had increased significantly the sale of milk. She said a general point about Mr. Miles is that when considering his evidence it should be borne in mind that he was the chief executive of the Incorporated Association of British Advertisers which is a trade association which exists to promote the interests of its commercial members, which includes McDonald's. Ms Steel said this meant he was 'hardly unbiased', and that as a result, any admissions which he made in the defendants favour would be particularly significant.
He said that it was not considered acceptable for advertisements to tell children to go and nag their parents, but then agreed that the effect of advertisements is that children do nag their parents.
The defence had asked Mr Miles during his evidence, that if people considered advertising to children to have a detrimental effect, whether they have a right to express that view. He replied:
Ms Steel said "Obviously, that is the exactly the view that is being expressed in the London Greenpeace factsheet which McDonald's are suing us over. So their own witness thinks it perfectly reasonable for us to express the view that it is a bad thing for people to be advertising to children with the effect that the children then go and pester their parents or nag their parents."
Although Mr Miles had stated that he didn't like the term 'pester power', he had expressed surprise that a MORI poll had found 39% of parents had agreed with the statement 'I often end up buying advertised food or drinks which I would not otherwise buy because of my children asking me to', he expected the figure to be higher.
Ms Steel said
A long and drawn out debate then ensued concerning the viability of 'pester power' as a fitting expression. Justice Bell maintained for some time that it was emotive and asked the defendants to explain further what they were saying. He then said he understood that they were claiming they had established that as a result of the McDonald's ads, children pester their parents.
Ms Steel then said McDonald's witnesses had certainly accepted the pestering effect as well. In response to this, Mr Rampton fanned the flames by saying that:
The Judge then told Ms Steel to carry on with her submission and said "I have never understood them to accept pester".
This despite the fact that Ms Steel had already shown that 'pester power' was something used by the industry itself AND McDonald's own witnesses, including McDonald's executives AND Mr Rampton himself (when examining Mr Green).
Ms Steel said "I have read out I don't know how many quotes where the Plaintiffs' witnesses actually agree that there is pester power, that children do pester their parent as a result of McDonald's ads. I don't know how they can carry on denying it."
Nonetheless she continued with the submissions and referred to further examples of the plaintiffs accepting and using the term pester power.
The defendants had cross examined Paul Preston about a newspaper article which reported him as saying - in relation to the company targetting children with advertising in McDonald's early years in the UK - "it was pressure from kids which brought their parents into our restaurants". He said, "I probably said it, but I would have said other things with it". Ms Steel said that he was basically saying that he agrees with the statement it was pressure which brought from kids which brought their parents into our restaurants. So Mr.Preston, McDonald's UK president is admitting pressure, which is effectively exactly the same as pester power.
She reminded the judge in particular of surveys carried out on behalf of McDonald's to discover people's motivation for using McDonald's, one of which recorded that 55% of parents had ticked that they go to McDonald's 'when the kids pester me to go'. Another survey, McDonald's Brand Audit Research 1992, stated in its summary "McDonald's is more likely to be chosen than its competitors in response to kids pestering". A further page in the document entitled 'Eating out in fast food restaurants' (about people's reasons for going to particular fast food restaurants), stated 'McDonald's is the fast food restaurant for kids' and then listed four-points underneath which were:
Ms Steel said that the page had a McDonald's logo in the top left-hand corner, "so it is obviously going out with McDonald's approval".
The culmination of this episode was an extraordinary and unprecendented apology by Justice Bell to Ms Steel:
Ms Steel continued and referred to further documents which she said contained lots of references to pestering and pester power, noting one in particular, again on a page headed by a McDonald's logo, which said "medium and light users respond more to pester power".
Shortly after this the court adjourned until 10:30 am Thursday morning, when Mr Morris will start the Employment section.