I have been monitoring a list on First Amendment issues to which one of the
discussants posted the following "blow-by-blow" of a lawsuit brought by
McDonalds in London. I thought many of you would find it of interest.
 
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Here is the post, and it is long!
 
                        Keith Maxwell
                        University of Puget Sound
 
>For your reading pleasure
>
>Subject: McLibel trial in London
>
>
>[Summary: McDonald's is suing for Libel against some people who said
> McDonald's food is bad for you.  WWW links at the end point to stuff
> including the original text that casued the hulabaloo.]
>
>
>                3 October, 1994
>
>        +++++THE MCLIBEL TRIAL CONTINUES+++++
>
>
>After several years of pre-trial hearings, the McDonalds libel
>case against two unwaged campaigners - who were allegedly involved
>in distribution in 1989/1990 of the London Greenpeace leaflet
>"What's Wrong With McDonald's" - finally began at the end of
>June.
>
>            ++++++REMINDER OF THE BACKGROUND++++++
>
>
>A total of approximately 170 UK and international witnesses will
>give evidence in court about the effects of the company's
>advertising and the impact of its operating practices and food
>products on the environment, on millions of farmed animals, on
>human health, on the Third World, and on McDonald's own staff.
>They will include environmental and nutritional experts, trade
>unionists, McDonald's employees, customers and top executives.
>
>
>McDonald's have claimed that wide-ranging criticisms of their
>operations, in a leaflet produced by London Greenpeace, have
>defamed them, so they have launched this libel action against two
>people (Dave Morris & Helen Steel) involved with the group.
>
>Prior to the start of the case, McDonald's issued leaflets
>nationwide calling their critics liars. So Helen and Dave
>themselves took out a counterclaim for libel against McDonald's
>which will run concurrently with McDonald's libel action.
>
>Helen and Dave were denied their right to a jury trial, at
>McDonald's request. And, with no right to Legal Aid in libel
>cases, they are forced to conduct their own defence against the
>McDonald's team of top libel lawyers.
>
>The trial is open to members of the press and public (Court 35,
>Royal Courts of Justice, Strand, London WC2 - nearest Underground
>Temple or Holborn) and is set to run until at least March 1995.
>
>
>      ++++++++++++  NOW READ ON............  ++++++++++
>
>
>           ++++++++++THE SIXTH AND SEVENTH WEEKS OF THE TRIAL
>           (weeks beginning 12 and 19 Sept) were taken up with
>           McDonald's witnesses on DIET & CANCER, ADDITIVES, DIET
>           & DIABETES, and MARKETING; and with a Defence witness
>           on ADVERTISING and NUTRITION.+++++++++++++++++++
>
>
>DR SIDNEY ARNOTT: On 12 & 13th September, Dr Arnott (McDonald's
>expert on cancer) returned to be cross-examined by the Defendants.
>He argued that although there had been a great deal of research
>into cancer the exact causes were not proven. He was not convinced
>by the evidence linking a high fat/low fibre diet to cancers of
>the breast and bowel, although he accepted that a high fat diet
>was linked to heart disease, diabetes and also obesity (which he
>agreed might increase the risks of some forms of cancer).
>
>MODERN DIET LINKED TO CHRONIC DISEASES - The Defendants referred
>him to the conclusions and recommendations of a wide range of
>authoritative medical, scientific, advisory and governmental
>bodies including the major 1990 World Health Organisation (WHO)
>Report which stated "dietary factors are now known to influence
>the development of ... heart disease, various cancers,
>hypertension ... and diabetes. These conditions are the commonest
>cause of premature death in developed countries.  ...The
>'affluent' type of diet that often accompanies economic
>development is energy dense. People consuming these diets
>characteristically have a high intake of fat (especially saturated
>fat) and free sugars and a relatively low intake of complex
>carbohydrates (from starchy, fibre-containing foods). Such diets
>are well established in developed countries, and are now becoming
>more common in most developing countries. ...This change in diet
>can now be linked to the increasing incidence of chronic diseases
>and of premature death. Evidence suggests that many of these
>premature deaths should be preventable by changes in diet and in
>other aspects of lifestyle. ...Their prevention or reduction is
>both a social responsibility and an economic necessity."  Dr
>Arnott reluctantly admitted that the World Health Organisation was
>"probably" the most influential health organisation in the world.
>
>
>The Defendants quoted similar views linking diet with cancer from
>one of McDonald's own booklets from 1985 (not displayed in their
>stores), which Dr Arnott said was "reasonable" and "sensible"
>advice.
>
>"KISS OF DEATH" - In addition, the Defendants asked Dr Arnott's
>opinion of the following statement: "A diet high in fat, sugar,
>animal products and salt, and low in fibre, vitamins and minerals,
>is linked with cancer of the breast and bowel and heart disease."
>He replied: "If it is being directed to the public then I would
>say it is a very reasonable thing to say."  The court was then
>informed that the statement was an extract from the London
>Greenpeace Factsheet. This section had been characterised at
>pre-trial hearings as the central and most "defamatory"
>allegation, which if proven would be the "kiss of death"(*) for a
>fast-food company like McDonald's. On the strength of the supposed
>scientific complexities surrounding this issue the Defendants had
>been denied their right to a jury.
>
>(*  -- Richard Rampton QC for McDonald's, Court of Appeal, 16th
>March 1994.)
>
>STEVEN GARDNER: On 15th & 16th September Stephen Gardner, former
>Assistant Attorney General of Texas, gave evidence for the
>Defence.  Mr Gardner told how, in April 1986, a number of States
>including Texas held meetings with the major fast-food companies
>in order to force them to comply with food labelling regulations.
>They were told to provide ingredient and nutritional information
>to customers about each product sold. He said that McDonald's had
>been the most "recalcitrant" and "had to be dragged kicking and
>screaming into the fold". Eventually general agreement was reached
>and it was planned to make announcements to the press that the
>information was available from all the major chains. McDonald's
>told the Attorneys General that they needed more time before they
>were ready. However, the company then issued a unilateral press
>release claiming they were voluntarily pioneering a unique project
>to provide this information. The huge public row which followed
>lead to extensive press coverage attacking McDonald's deception.
>An internal company memo sent out at that time was read to the
>court which revealed that McDonald's had produced ingredient
>brochures "to help blunt the growing interest of state and federal
>lawmakers for ingredient labelling legislation".
>
>ADVERTISING DECEIT - The former Assistant Attorney General
>continued by explaining how, in the following year, McDonald's
>began a major, but deceptive, advertising campaign. The company
>claimed it was an "informational" campaign about the content of
>their food. However, the company's own internal magazine stated
>that the aim was "a long term commitment beginning with a
>year-long advertising schedule" ... "to neutralise the junk food
>misconceptions about McDonald's good food." The buzz words in
>almost all the ads were "nutrition", "balance" and "McDonald's
>good food". After the series of ads hit the news-stands, the
>Attorney General of Texas, in conjunction with the two other major
>states, wrote a letter to McDonald's on 24th April 1987 stating:
>
>        "The Attorneys General of Texas, California and New York
>        have concluded our joint review of McDonald's recent
>        advertising campaign which claims that McDonald's food is
>        nutritious. Our mutual conclusion is that this advertising
>        campaign is deceptive. We therefore request that
>        McDonald's immediately cease and desist further use of
>        this advertising campaign. The reason for this is simple:
>        McDonald's food is, as a whole, not nutritious. The intent
>        and result of the current campaign is to deceive customers
>        into believing the opposite. Fast food customers often
>        choose to go to McDonald's because it is inexpensive and
>        convenient. They should not be fooled into eating there
>        because you have told them it is also nutritious. ...The
>        new campaign appears intended to pull the wool over the
>        public's eyes."
>
>Mr Gardener also referred the court to some of the specific
>examples of inaccuracies and distortions in the 16 individual
>advertisements. He related how, after the three States had
>threatened legal action if the ads were repeated, McDonald's
>promised to stop the ads.
>
>At the current trial McDonald's claim that the ads were not
>dropped and were later printed again.  However, of the four ads
>they said had been run after the threats, three were not the
>specific ads referred to in the complaints, one was not from the
>original series of ads at all, and none mentioned "nutrition",
>"balance" or "McDonald's good food".
>
>PROFESSOR RONALD WALKER - ADDITIVES: McDonald's called Professor
>Walker, their expert on additives and toxicology. The company uses
>dozens of additives in its food. The Defendants have cited nine of
>these (E110/Sunset Yellow, E124/Amaranth, E250/Sodium Nitrite,
>E252/Potassium Nitrate, E320/BHA, E321/BHT, E407/Carrageenan,
>621/Monosodium Glutamate, 924/Potassium Bromate) as potentially
>detrimental to health; most of them are banned in one or more
>countries.
>
>Professor Walker explained that the main basis for permitting
>additives as "safe" was that they had been tested on animals. (He
>said tests on humans were unethical.) He admitted that animals had
>a different metabolism to humans, that the small number of animals
>used in each experiment would not reflect the vast diversity of
>human situations, and that the results were not always consistent.
>However, as a result of these tests an "Acceptable Daily Intake"
>for humans is usually set.
>
>Allergies.     The animal tests, Professor Walker admitted, failed
>to predict allergies and some other "intolerances", and he went on
>to accept that many people (about "one in a thousand") were
>allergic to the colouring additives E110 & E124. He stated there
>was also "anecdotal" evidence that four of the additives provoked
>hyperactivity in kids. His opinion was that food should be
>properly labelled so that people could avoid the additives.
>
>Professor Walker agreed that one of the nine additives, Potassium
>Bromate, was known to be carcinogenic. It had been used in the
>manufacture of all McDonald's bread buns until 1990 when it was
>banned.
>
>Walker also acknowledged that the basis for permitting the use of
>additives varied from country to country, taking into
>consideration "the balance of safety and need" (i.e. the food
>industry's modern processing needs).
>
>Styrene migration into food.     Finally, Professor Walker agreed
>that styrene can migrate from polystyrene packaging into food
>(especially fatty foods). He said that the International Agency
>for the Research on Cancer had classified styrene as possibly
>carcinogenic to humans. Also styrene can be transformed in the
>body into styrene oxide, which he said appeared to be much more
>hazardous to human health. He said that more styrene from "the
>polluted urban atmosphere" also gets into the body. He referred to
>a survey which claimed that "100% of subjects studied in the USA
>had detectable levels of styrene in their body fat".
>
>ALISTAIR FAIRGRIEVE - MARKETING: Alistair Fairgrieve, McDonald's
>UK Marketing Services Manager, outlined some of the research
>undertaken by the company to discover what customers were thinking
>and the effects of advertising, with the aim of increasing the
>number of customers visiting McDonald's and the frequency of
>visits. They are part of a fast food "syndicate" which does an
>annual phone survey of eating habits of 60,000 people. They also
>do their own "customer profile" questionnaires etc.
>
>Mr Fairgrieve explained that questions were asked about seventeen
>"functional" and "emotional" attributes which were "ranked in
>terms of importance" to McDonald's. "At the top there are the ones
>by which we stand or fall." At the bottom were four categories:
>"Food is Filling", "Good Value For Money", "Use Top Quality
>Ingredients", and finally "Nutritious Food".
>
>Some interesting conclusions were reported for 1994: 91% agreed
>that McDonald's was a "place kids enjoy", whereas only 47% a
>"place adults enjoy" (up from 31% in 1992). Only 34% agreed it
>"offers low price" and only 30% felt that it sold "nutritious
>food" (up from 19% in 1992).
>
>Advertising and "emotional pull".      Fairgrieve explained how
>the company boosted some of the lower percentages by building
>people's "trust" and their "emotional pull" to the company - this
>was achieved by "a repositioning of McDonald's as a brand in late
>1992 and the launch of a new advertising theme". He later stated
>"it is our objective to dominate the communications area ...
>because we are competing for a share of the customer's mind".
>
>Further interpretation of various survey results was hampered by a
>lack of background information and statistics; Mr Fairgrieve was
>told to return at a later date with such details.
>
>PROFESSOR HARRY KEEN - DIET & DIABETES: On the links between diet
>and diabetes, McDonald's called Professor Harry Keen, former chair
>of the World Health Organisation's (WHO) Expert Committee on
>Diabetes. He stated that diabetes and its complications are
>estimated to affect about 5% of "western" populations. There were
>two main types of diabetes. The more common type,
>non-insulin-dependent diabetes mellitus, was usually diagnosed
>after middle life. He said that obesity was shown to be clearly
>linked with increased risk of this type of diabetes. He said that
>"the link between obesity and diabetes development is universally
>accepted". In general the whole UK population was becoming more
>obese, and as physical activity falls (with use of cars etc)
>people need to cut back even more on energy intake (fat is the
>most concentrated form of energy in the diet).
>
>The Defendants referred Professor Keen to sections of the 1990 WHO
>Report on Diet, Nutrition and the Prevention of Chronic Diseases.
>One extract suggested that the optimal percentage of food energy
>obtained from dietary fat should be 15-20%. (UK governmental
>recommendations are 30% - these were set as an "achievable" target
>given the average current levels of fat intake which are much
>higher. McDonald's have admitted that most of their main meals are
>above even that figure.) Professor Keen said that "dietary factors
>are now known to be associated with the development of a wide
>range of chronic diseases", including heart disease, hypertension,
>cancer and diabetes. His view of WHO reports was that they
>"represent state of the art and the state of the scientific
>opinion so they are regarded with considerable respect".
>
>
>        +++++++   The case continues.   +++++++
>
>     +++++++MCLIBEL TRIAL DIARY+++++++++
>
>
>The court has not been sitting during the week commencing 26th
>September.
>
>EIGHTH WEEK (COMMENCING 3RD OCTOBER) - TO INCLUDE MORE ON DIET &
>HEALTH, NUTRITION
>
>
>Monday 3rd October:  Geoffrey Cannon (Defence expert witness -
>diet and health)
>
>Tuesday 4th October:  Professor Michael Crawford (Defence expert
>witness - diet and cancer & heart disease)
>
>Wednesday 5th October:  Professor Michael Crawford (continuation)
>
>
>Thursday 6th October:  Tim Lobstein (Defence expert - diet and
>health, and nutrition)
>
>Friday 7th October:  Tim Lobstein (continuation);  Richard Brown
>(Defence expert witness - diet and heart disease)
>
>The trial is open to members of the press and public, starting at
>10.30am daily:  Court 35, Royal Courts of Justice, Strand, London
>WC2.  (Please note that the nearest underground station - Aldwych
>- is no longer even open in the rush hours; as part of the
>continuing cut-backs in public transport provision in London, the
>Holborn-Aldwych shuttle service has this month been closed "for
>good".  Please use Temple or Holborn - each is within walking
>distance of the court.)
>
>     +++++++ CAMPAIGN STATEMENT:  The McLibel Support Campaign was
>     set up to generate solidarity and financial backing for the
>     McLibel Defendants, who are not themselves responsible for
>     Campaign publicity. The Campaign is also supportive of, but
>     independent from, general, worldwide, grassroots
>     anti-McDonalds activities and protests.
 
Prof. Keith A. Maxwell                |  Voice:    206 756 3703
Legal and Ethical Studies in Business |  Fax:      206 756 3500
1500 N. Warner                        |  Internet: [log in to unmask]
University of Puget Sound             |---------------------------------------
Tacoma, WA 98416                      |  "Brevity is the soul of wit."
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