NUTRITION





1. RE-AMENDED PARTICULARS OF JUSTIFICATION AND FAIR COMMENT

C. Nutrition

The McDonald's Nutrition Guide, published in 1985, and distributed in stores, does not make clear the links between a diet high in fat, sugar and sodium and low in fibre vitamins and minerals, and cancers of the breast and bowel and heart disease.

Much of the food sold at McDonald's is high in fat, saturated fat, sugar and sodium content, and low in vitamin and fibre content.

There is a considerable amount of evidence of a relationship between a diet high in fat, sugar and sodium and low in fibre, and diseases such as obesity, high blood pressure, heart disease and some forms of cancer. This fact is acknowledged in a booklet published by the 2nd plaintiff in or around 1985 entitled Good Food, Nutrition and McDonald'S which is not generally available in McDonald's stores. The same pamphlet acknowledges that dietary fibre is important as it helps prevent constipation.

Epidemiological studies have shown an association between dietary fat and the occurrence of cancer of the breast and large bowel (see, for example, Doll & Peto, 1981). Correlative studies have shown an association between fac intake and incidence of, and mortality from, breast cancer (see, for example, Draser & Irving, 1972; Kolonel et al, 1981).

In or around 1987 three states, New York, California and Texas threatened to take legal action action McDonald's on the grounds of a huge advertising campaign by McDonald's extolling its food as nutritious. The Texas Attorney-General threatened this action on the grounds that contrary to the information portrayed in the advertisements, as a whole, McDonald's food is not nutritious. In the face of this threat of legal action McDonald's withdrew its campaign.

In 1986 McDonald's were working with Golan/Harris Communications of Chicago on an advertising campaign to promote McDonald's foods. Golan/Harris executive, Al Smedley, sent an internal McDonald's memorandum to public Relations staff member Stephanie Skurdy dated on or around 18th March 1986. In one section of the memo he wrote that during a meeting the previous day on nutrition "we all seemed to agree that, if possible, McDonald's should attempt to deflect the basic negative thrust of our critics by creating a scenario where we take the high road" and "How do we do this? 13 talking balance. We can't - at this stage of the situation - really address or defend nutrition. We don't sell nutrition and people don't come to McDonald's for nutrition. Rather than fight a defensive war of attrition by responding to constant nutrition attacks, let's not even deal with it"

In July 1986 in the USA, Attorneys General of several states had negotiated an agreement with a number of fast food chains, including McDonald's, to provide consumers with booklets or posters listing ingredients and nutrients. Before the scheduled press conference was to be held, McDonald's asked for a two day delay. The day before the press conference was to be held, McDonald's issued its own release, saying that it was providing the product information voluntarily, and not disclosing the state Attorneys General had forced the issue.

Spain, in or around January 1991. The organisation of Consumers and Customers analysed the company's meals and concluded the food was 'unbalanced, poor and occasionally contaminated' . The Government's chief consumer official urged regional and municipal bodies to conduct their own health inspections.

Germany, in or around March 1985 McDonald's took legal action to prevent circulation of a hook by ex-employee and journalist, Gunther Walraff. A Munich judge rejected McDonald's attempts to prevent their food being described as 'slop' . He did rule against an article written by Mr. Walraff which warned against the risk of bacterial infections from the company's food after hearing testimony from 60 employees who stated they ate the food daily and had not developed an infection.

Jean Pelletier, the Assistant Dean of McDonald's Hamburger University, USA, stated 'I could eat hamburgers three times a day' and maintained that it was possible to get addicted to hamburgers.

A survey of McDonald's restaurant staff carried out in 1992 found that 6% of their employees ate a McDonald's meal more than five times a week.

On 21st October 1986, the Court of Appeal upheld the conviction of McDonald's for two offences of selling 'diet cola' not of the substance demanded on 16th December 1985 and 27th January 1986.

On 14th April 1992 in Croydon, McDonald's were fined £1,800 with £2,500 costs for selling 'diet cola' not of the substance demanded.

McDonald's pride themselves on the uniformity of their products throughout the world. The achieve this they have set formulae and specifications for menu items. In order to ensure the food looks and tastes the same the world over the plaintiffs use a number of chemical additives in the preparation of their food. In a booklet published by the Second plaintiff in or around 1989, 43 additives are listed as being used on their foods. A number of these are believed to have undesirable side effects. Some of the listed additives are specifically listed by the Hyperactive Children's Support Group as unsuitable for such children. In France, in or around 1986 legal action was taken against McDonald's for using banned colorants in their milk shakes. In or around 1979, in Australia, McDonald's was selling products containing lettuce with traces of the following chemicals: sodium disulphite, citric acid, ascorbic acid, calcium silicate, sodium citrate and sodium hexanetrophosphate.

In or around April 1990, the head of McDonald's in Japan, referring to the company's hamburgers, stated "we put chemicals in them to make them tastier".

Woolwich, London UK 1974. On the opening day at the first UK store not one member of the public bought any food despite a large promotion exercise.

McDonald's has hard chairs designed to discourage customers from staying in the store for very long. Some stores, for example in Washington, go further and post signs stating 'No loitering. 20 mInute time limit consuming food.

2. FURTHER AND BETTER PARTICULARS OF THE PARTICULARS OF JUSTIFICATION AND FAIR COMMENT



1.
Of: "Further or in the alternative, the words complained of in their natural and ordinary meaning are true in substance and in fact. In so far as it may be necessary, the Defendants will rely on Section 5 of the Defamation Act 1952.

Particulars of justification will be served separately."

Specifying, in relation to each plaintiff, the defamatory meanings which the Defendants seek to justify.

ANSWER



The Defendants seek to justify the following meanings in respect of each plaintiff.

C.
That the First and Second plaintiffs do not inform the public of all the facts when they claim that the food they sell is nutritious. particularly, that the food they sell is high in contents such as fat which can be linked to various diseases, especially heart disease, and/or cancer.

D.
That the First and Second plaintiffs sell food which is 'synthetic' in that it is prepared and cooked in a way that is almost mechanical. Hamburgers and chips are generally uniform in size and content and the cooking techniques are designed to ensure that the food sold is the same the world over. Further, that overall the food is not nutritious nor is it healthy, particularly since it lacks in bulk and requires very little chewing. Further, that people can develop a 'craving' for the food sold by the First and Second Plaintiffs and that this can lead to overeating and problems such as constipation, clogged arteries and heart attacks.

2.
Of: "Further or in the alternative, the words complained of are fair comment..

Specifying, in reaction to each Plaintiff, the defamatory comments which the Defendants seek to support.

ANSWER



The Defendants seek to support the following comments in respect of each Plaintiff.

D.
Most people regard processed burgers and synthetic chips, served in paper plastic containers as 'junk-food'. Further, that it is a sign of the junk-quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time. Further, that the craving experienced by some people for the food of the First and Second Plaintiffs could lead to constipation, clogged arteries and heart attacks. Further, that the lettuce leaves of the First and Second plaintiffs are so treated that they might as well be plastic.

5. Under sub-paragraph C (Nutrition)

Of: "Much of the food sold at McDonald's................."

Stating:

(1)

the identity of each item of food sold at McDonald's which is alleged to be high in fat and saturated fat content and low In vitamin and fibre content with full particulars thereof;

(2)
whether it is alleged that there is in fact an association between dietary fat and the occurrence of cancer of the breast and large bowel, and if so, the full facts and matters relied upon In support thereof;

(3)
whether it is alleged there is in fact an association between fat intake and incidence of, and mortality from breast cancer, and if so, the full facts and matters relied upon in support thereof;

(4)
whether it is alleged that the actions threatened by the States of New York, California and Texas were well founded; if so the facts and matters relied upon in support thereof;

(5)
the identity of each of the additives listed in the booklet published by the Second Plaintiff in or around l989 which are known to have undesirable side effects, specifying the said side effects, and those listed additives which are alleged to be unsuitable for hyperactive children.


ANSWER



(1) The following items are high in fat and saturated fat and low in vitamin and fibre content:

Hamburger
Cheeseburger
Quarter Pounder
Quarter Pounder with cheese
Big Mac
Filet-o-Fish
Chicken McNuggets
French Fries
Apple Pie
Donut
Donut - chocolate flavoured topping
Donut - cinnamon Coating
Birthday Cake
Milkshakes
McDonalds' Big Breakfast
Hotcakes, sausage Pattie, Butter and syrup
Bacon and Egg McMuffin
Sausage and Egg McMuffin
Scrambled Eggs and Buttered English Muffin
Buttered English Muffin

The particulars of fat, fibre and vitamin are set out in the booklet entitled 'McDonald's Food: The Facts' published by the Second Plaintiff in or around July 1989 and in the booklet entitled 'Nutritional Analysis of Food Served at McDonald's Restaurants' also published by the Second Plaintiff. The Defendants further rely upon the research carried out by Southwark Public Protection' public analyst, the results of which show that McDonald's Big Mac, McDonald's Filet-o-Fish and McDonald's quarter pounder with cheese are amongst the highest fat fast foods (see 'The Food Magazine' Issue No.3, Autumn 1988).

(2)
Yes. The Defendants will rely upon the research studies stated in the Particulars of Justification and Fair Comment and on various Health Education Authority publications.

(3)
Yes. The Defendants will rely upon the research studies stated in the Particulars of Justification and Fair Comment and various publications by the Health Education Council and the Cancer Education Co-ordinating Group of the United Kingdom and the Republic of Ireland.

(4)
Yes. The facts and matters relied upon are matters of evidence and the Defendants reserve the right to call evidence at trial In relation thereto. However, without prejudice to the foregoing the Defendants contend in particular that the actions were well-founded for the following reasons:

1. The McDonald's advertisement, which was the subject of part of the action, discussing salt (sodium) content in foods stated that 'Our Sodium is down across the menu' . This was not true. The same advertisement listed four products (regular fries, regular cheeseburger, 6-piece McNuggets and vanilla milkshake) none of which had had their sodium content lowered in the year preceding the advertisement.

2. The advertisement in question stated that McDonald's milkshakes contain wholesome milk, natural sweeteners, a fluid ounce of flavouring and stabilisers for consistency. And thats all' In fact, McDonald's own ingredient booklet showed that this milkshake contained artificial flavour, sodium benozoate and sodium hexametaphosphate.

3. The advertisement emphasised the relatively low cholesterol content of a regular hamburger but did not mention the saturated fat content which is much more relevant to those concerned with heart disease.

The Defendants will also rely upon the fact that McDonald's withdrew the advertisements when threatened with legal action.

(5) Under sub-paragraph C (nutrition)

E11O Sunset Yellow
Allergy risk, causing skin rashes, swelling blood vessels, gastric upset and vomiting. Recommended to avoid by Hyperactive Children's Support Group ( 'HCSG').

E124 Amaranth
Skin rash
HCSG recommend avoidance.

E250 Sodium Nitrite
Can cause nausea, vomiting, dizziness, headaches, de-oxygenation of the blood, low blood pressure and collapse of circulatory system.
HCSG recommend avoidance.

E252 Potassium Nitrate
Can cause gastro-enteritis, vomiting, vertigo, muscular weakness and irregular pulse.

E320 Butylated Hydroxanisole.
Can cause raised lipid and cholesterol levels in the blood. Not permitted in food intended for babies and young children.
HCSG recommend avoidance.

E321 Butylated Hydroxytolene
May cause rashes, linked to reproductive failures, behavioural effects and blood-cell changes. Not permitted in food for babies and young children.
HCSG recommend avoidance

E407 Carrageenan
May cause ulcerative colitis and when degraded may be carcinogenic. Most harmful when taken in a drink.

621 Monosodium Glutamate.
May cause heart palpitations, headaches, nausea, weakness of upper arms, pains in neck and symptoms similar to migraine. Not permitted in food for babies and young children.

924 Potassium Bromate.
May cause nausea, vomiting, abdominal pain and diarrhoea.


3. FURTHER AND BETTER PARTICULARS OF THE PARTICULARS OF JUSTIFICATION AND FAIR COMMENT PURSUANT TO AN ORDER DATED 6TH NOVEMBER 1991

UNDER SUB-PARAGRAPH C (NUTRITION)


Requests numbered (2) and (3)


Yes. Breast cancer is oestrogen dependent and oestrogen production is related to obesity which, in turn, is related to excess dietary fat. High dietary fat intake affects the composition of intestinal bacteria and its metabolic activity. It also affects the level of cholesterol metabolites and bile acid which can act as tumour promoters for the colon. Dietary fat increases fatty acids in the body. These acids can be highly irritant to the colon epithelium. Dietary fat increases the likelihood that the contents of the large bowel will be carcinogenic which encourages the colonic flora to produce carcinogens. As dietary fat increases so there is an increase in the excretion of bile acids by anaerobic bacterial flow. Bile acids are secreted into the intestines to help digest fat. The higher the fat intake the more bile acids are produced. The concentration of bile acids, particularly in the feces, is associated with an increased risk of colon cancer. Dietary components, such as fat, promote mammary tumour growth, which can lead to breast cancer.

The Defendants will rely upon a number of publications and studies, including:

Further, the Defendants will rely upon the research carried out by Bristol, Emmett, Heaton and Williamson (see British Medical Journal, Vol 291, 23.11.1985) which assessed 50 patients with large bowel cancer by their dietary history and compared them to closely matched controls. The finding that patients with large bowel cancer consumed more energy, in the form of carbohydrates and fat, than the controls will be used by the Defendants to support the contention and the comment that there is an association between dietary fat and the occurrence of cancer of the large bowel. The Defendants will also rely on a number of studies on women comparing the diets of those with breast cancer and matched controls, showing that the women with breast cancer had on average a higher dietary fat intake than the controls. In particular, a study by Hislop, Goldman, Elwood, Brauer and Kan (see: Cancer Detection and Prevention 9:47 - 58 (1986)) of virtually all women with breast cancer in British Colombia (Canada) 1980 - 82, concluded that fat consumption is associated with breast cancer, especially in premenopausal women.

4. FURTHER AND BETTER PARTICULARS OF THE AMENDED PARTICULARS OF JUSTIFICATION AND FAIR COMMENT

REQUEST

3.
Of: In order to ensure the food looks and tastes the same the world over the Plaintiffs use a number of chemical additives in the prepartion of their food.

Stating, in relation to each item of food sold by the Plaintiffs, the chemical additives alleged to be used by the Plaintiffs in its preparation, making it clear in each case whether it is alleged that the said additive is only used to ensure the food looks and/or tastes the same, and if so which.

The pleadings should read 'chemical and other additives', and the additives which the Defendants rely, and the food items in which they are sold are detailed in the Plaintiffs' separate publications, 'McDonald's Food: The Facts'. It is alleged that these additives are used to ensure either that the food looks or tastes the same or both.

Defence