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Justice Bell's Verdict
19th June 1997
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Chief Justice Bell's 800 page judgement was handed down on Thursday 19th June 1997 after his presentation of the Summary - the whole judgement is presented here for your enjoyment.
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5. The use of recycled paper.
I return to the words in parentheses referring to recycling and litter. It is convenient to repeat that part of the text. After the reference in the main text refers to destroying vast areas of Central American rainforest to provide fast-food packaging, the words in parentheses read: "Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of 'developed' countries." The injunction to the reader not to be fooled by what McDonald's say follows the theme sign-posted by the front page subtitle "Everything they don't want you to know" and the first line on page one, the first page of text: "This leaflet is asking you to think for a moment about what lies behind McDonald's clean, bright image". Two of the sets of McDonald's arches along the top of the leaflet bear the words "McWasteful" and "McGarbage". The Plaintiffs complained that this part of the leaflet means that the Plaintiffs and each of them are lying when they claim to use recycled paper. In my judgment, the words "Don't be fooled by McDonald's saying they use recycled paper: only a tiny percent of it is", purport to state what McDonald's say in comparison with what the truth actually is. Taken with the leaflet's introductory theme that McDonald's has a lot to hide, they amount to a clear allegation that McDonald's is lying when it claims to use recycled paper. Again I would expect the ordinary reader to believe that "McDonald's" in the words in parentheses included both Plaintiffs: the First Plaintiff as the company running McDonald's around the world, and the Second Plaintiff running McDonald's in this country where publication of the leaflet is complained of. The allegation of lying is clearly defamatory of the
Plaintiff companies and damaging to their trading reputations, involving as it does an allegation of knowing corporate deception of the public. It is an allegation which would make people reluctant to deal with them. The allegation is a simple statement of alleged fact. There is no question of comment, in my view. The Defendants contended that the charge of lying when claiming to use recycled paper was justified; that it is true in substance and in fact. They contended that when McDonald's say in publicity material that they are committed to using recycled paper, or when they print on packaging or literature a message that it is Recycled", they give a knowingly false impression because only a tiny percent of their paper packaging is recycled at all and much of it is not, so the Defendants said, genuinely recycled in the sense of having gone through its useful life before being put back into the manufacturing process. In addition it is deceptive because some annotations refer to recycled paper when only a percentage and not the whole of it is recycled fibre. So the Defendants alleged. The Plaintiffs said that the charge of lying when claiming to use recycled paper was completely false. There are four essential questions to answer: what has the recycled content of McDonald's paper packaging been; what public statements has either Plaintiff made about this; were any of those statements lies, and what does "recycled" paper mean? The last question arises because articles which are commonly declared to be made with Recycled paper may in the U.S. contain fibres recycled from waste such as manufacturing off cuts which never reach the consumers ("post industrial" or pre-consumer wastes), or they may contain fibres recycled from waste reclaimed after use by the consumer ("post-consumer wastes), or they may contain a combination of the two. In the U.S.A. the labelling which claims that an article is made from recycled fibre now has to be more specific, stating whether it has been made from recycled post-industrial waste or post-consumer waste or both and giving the percentages. Throughout what I have to say I will use "paper" to include paperboard or cardboard. The bulk of the evidence came from the Plaintiffs' witnesses who provided facts and figures which the Defendants tested and
challenged in cross-examination, looking for ammunition, or from Plaintiffs' documents. This meant that nearly all the figures for recycled content of McDonald's material at various times came from the Plaintiffs, but I accept it, save where it was clearly wrong or self contradictory, because most of the figures were gathered in what I believe to have been a genuine attempt to reduce waste as public awareness and interest grew. Whether the attempt was motivated by environmental concern or commercial or public relations considerations or under outside pressure probably matters not. As with a number of topics in the case I believe that the Plaintiffs' commercial success has involved meeting public concerns which at least some of their officers, being after all members of the public themselves, share. In any event the burden was on the Defendants to prove that the defamatory charge of lying about recycled content was justified, and they did not call witnesses to give different figures to those provided by the Plaintiffs. They could hardly have done so. Analysis of proportions of recycled and virgin fibre was not put forward as a practical means of enquiry. If the Plaintiffs' figures were unreliable the Defendants would have no other figures to support their case of justification. In April, 1991, the First Plaintiff published a report written for it by its Waste Reduction Task Force and the Environmental Defense Fund. One of the authors was Mr Robert Langert who gave Evidence. He has been the First Plaintiff's Director of Environmental Affairs since 1991. Before that he worked for the Perseco company where he was responsible for managing projects relating to resource waste management alternatives. Perseco provides a purchasing service of customer packaging to McDonald's worldwide with the exception of Canada, Australia and Japan. Mr Langert was still working for Perseco when he worked on the task force and report.
The report contained a table setting out "McDonald's Packaging Made With Recycled Contents 1990" with the following figures:
The asterisks indicated changes made in 1990 and all numbers were based on annual impacts, although not all changes were fully phased in during 1990. The minimum projection for 1991, based on napkins and carryout bags reaching an objective of 100% recycled content in 1991, was that total usage of recycled material would increase by 19% to a total of 89 lbs/day restaurant. A McDonald's Environmental Affairs letter dated February, 1992, and giving a review of 1991, included a page headed "Perseco: Update on Packaging". It spoke of research to see how customers felt about the move away from foam packaging to paper, which was taking place in U.S. McDonald' s. One of the contacts for enquiry was Mr David Kouchoukos who also gave evidence. He is Perseco's Environmental Affairs Manager. The Update on Packaging contained a table, Perseco Packaging with Recycled Contents, updated January 20, 1992 A, which gave the following figures:
The following page contained an item headed, "Labelling Changes: Post-Consumer/Pre-Consumer", and the text: "McDonald's is in the process of changing its labeling on packaging with recycled content to denote the relative percentages of post-consumer and pre-consumer content. This is being done due to legislation from such states as Rhode Island and due to the increasing expectations of environmental leaders and experts to help educate customers regarding this issue. McDonald's packaging will continue to highlight the 'Made with Recycled Paper' message, but as you see in the Happy Meal carton example, there usually will be an asterisk with the respective percentages."The Happy Meal carton example bore a motif with a set of McDonald's M arches inside three recyclable arrows and the legend: "Made with recycled paper 60% Post-Consumer Content 40% Pre-Consumer Content". The text continued:
"Definitions are as follows: Pre-Consumer/Post-Industrial Recycled Material: Manufacturing waste generated during the intermediate steps of producing an end product, but excluding materials (such as mill broke) that are routinely internally recycled to make the same, or a very similar product. Post-Consumer Recycled Material: Waste material generated from products or packaging which have served their intended use and have been recovered, reprocessed and reused as a raw material for the manufacture of another marketable product." Mr Langert and Mr Casper Van Erp, Supervisor of the Quality Assurance Department at the European headquarters of Perseco in England, gave effectively the same descriptions of post-industrial and post-consumer waste. Speaking of pre-consumer, post-industrial waste, tar Van Erp gave the example of cup blanks or lids cut out of a large sheet of paper by what he called a pacer converter as opposed to a paper producer, before being folded into shape. If off cuts in the paper producer's paper mill went back into the milling process before paper was sent off to the paper converters that would not be recycling. If the remains of a sheet were fed back into the beginning of a manufacturing process by the paper converter that would not be considered recycled. If the remains went to be recycled by a paper producer that would be pre-consumer, post-industrial recycled material. The same applied to polystyrene.
Counsel for the Plaintiffs made a table to compare the 1990 and 1991/2 tables which I have set out, as follows:
No figures were given for Sandwich Wraps in 1991/2 but the text above the 1991/2 table referred to "increasing the recycling content in sandwich wraps H, and Mr Langert gave evidence that at the time the technology was not available to meet federal regulations and guidelines concerning direct contact between food and packaging, so far as packaging which contained post-consumer waste was concerned. Suppliers had just started making breakthroughs in the year before Mr Langert gave evidence in July, 1994. Mr Langert said that post-industrial, pre-consumer waste was safe and free of anything which the FDA frowned on because it consisted of clean manufacturing trimmings which were put back into the paper making process. It appeared that the requirements were less stringent in many European countries, but I had no reason to doubt Mr Langert's evidence about the U.S. Mr Langert could not say for how long there had been some post-consumer recycled content in Perseco's packaging. He would guess that it went back to the 1960s with pulp trays for carrying food items. They were called pulp trays because they were made from pulped and recycled newspapers. Napkins had also probably had some post-consumer recycled content since the 1960s. After giving oral evidence, Mr Kouchoukos provided a Civil Evidence Act statement stating that the overall recycled content of McDonald's paper used in the U.S. for the years from 1987 to 1992, excluding 1990, was 1987 - 16%, 1988 - 17%, 1989 - 17%, 1991 - 51% and 1992 - 51%, although there were some queries over the precision of the 1988 and 1989 figures. Those figures did not distinguish between post-industrial and postconsumer recycled content. Mr Edward Oakley, Senior Vice President of the Second Plaintiff and Chief Purchasing Officer in the U.K. and Eire and, since early 1993, for Scandinavian countries and some countries in Europe, said that there had always been an initiative in McDonald's for recycling but it had gained more momentum in
recent years as environmental issues had gained more momentum. The information about the recycled content of McDonald's European packaging was less detailed than the U.S. information and no record distinguishing the post-industrial and post-consumer proportions appeared to exist. Mr Oakley nevertheless gave some evidence of the Second Plaintiff's use of recycled paper. He was obviously working on information which he had been given by others but that was inevitable in this part of the case. He said that paper bags comprised the biggest category of paper items. Since 1991 the paper bags used by McDonald's had been made from 100% recycled paper. For a considerable period before that, that is for as long as he had been with McDonald's, that is since 1978, a high percentage of recycled paper had been used in the bags. It was fairly close to 50% originally. The Civil Evidence Act statement of Mr Ken Allen, the Bag Sales Director of the Scottish company which has supplied McDonald's in the O.K. with bags since the late 1970s, said that initially the bags were made using 75% wood pulp and 25% waste paper. The waste paper (recycled) content increased to 50% in 1985. In 1990 the base paper of the bags changed from white to brown and the waste paper content increased to 80%. He was expecting the bags to go completely recycled in 1995, but there was some uncertainty about whether that was achieved. Mr Oakley said that since 1991 McDonald's napkins had been made from 100% recycled paper. Before that the percentage was fairly high but he could not give a figure. They had contained a recycled element since the early 1980s. Two and four ridded paper trays, primarily for carrying drinks, had been made from 100% recycled paper since 1981. These may have been used only in the U.K. and not in the rest of Europe. They sounded much the same as the U.S. "pulp trays". Fry cartons were made from 72% recycled paper from June, 1990, but that was the first time that they contained recycled paper to the best of Mr Oakley's knowledge. The same applied to Chicken McNuggett cartons which contained 72% recycled paper, but from February or March, 1991. The same applied to apple pie cartons which contained 72% recycled paper, but from May, 1991. They came from the same supplier.
Mr Oakley said that place mats had been made from 100% recycled paper since July, 1991. He believed that they contained some recycled content before that, but he could not accurately say how much. Mr Oakley said that toilet rolls had all been made from 100% recycled paper since August, 1989. The same applied to kitchen rolls. Recycled paper was introduced into the Second Plaintiff's official stationery in early 1990, according to Mr Oakley, although he later said that he did not know whether there was some recycled content before that. He said that before then there was little recycled office paper available, but they introduced collection of office paper for recycling. It cost the same as virgin paper. By the time that Mr Oakley gave evidence in December, 1994, all office stationery was made from recycled paper. A memo dated March, 1990, makes it clear that the use of recycled office stationery, and its collection for recycling, was only just really getting under way then. Accordingly to Mr Oakley, the reason why recycled content came in, in some items, or why it increased in others in about 1991 was that Perseco became established in Europe then and drove the policy to use recycled paper. Before then the initiative came from McDonald's rather than their suppliers, but no one was really driving it. It seemed clear to me that Perseco and McDonald's in the U.K. and Europe were following the example set in the U.S. Mr Oakley would have said that recycled paper only became widely available for packaging in the late 1980s; but some of the First Plaintiff's cardboard and paper packaging for transport and storage had contained a percentage of recycled material for the sixteen years that Mr Oakley had worked for McDonald' s. It was not true that only a tiny percentage of McDonald's U.K. packaging was or had been recycled. Mr Van Erp's evidence of the recycled content of McDonald's packaging could only go back to about March, 1991, which was when Perseco came in, or the end of 1991 when he joined Perseco, and there were no detailed figures for that year. Working from a Perseco Europe report on the use of packaging materials by McDonald's restaurants in 1992, Mr Van Erp said that
32.15 million kilograms of packaging were used, including transport packaging. The recycled content was about 14.9 million kg, i.e. about 46%. But a significant amount of the packaging was polystyrene, polypropylene and polyethylene. If one excluded these, by my calculations on the figures in the report, the total paper and board (laminated and unlaminated), wood and transport packaging was 26.6 million kg of which the 14.9 million Kg, i.e. 56%, consisted of recycled fibre. About 70% of transport packaging was recycled material, but the 7.75 million kg of laminated paper was all virgin fibre or wax and the 29,000 kg of wood was all virgin fibre. Mr Van Erp gave some evidence of the recycled content of some individual items, but it did not go much if at all beyond what Mr Oakley said. Mr Van Erp said that the first Perseco Europe requirement for recycled content in corrugated containers was made in 1991. The requirement was for a minimum recycled content of 50% by April, 1992. The average amount for transportation packaging was around 35% in 1990, 50% in 1991 and 71 or 72% in 1992. However, food products were not handled by Perseco, so food transportation packaging as opposed to customer service packaging was not included in Perseco figures. Toilet rolls and kitchen towels were not Perseco's responsibility; nor were place mats, tray liners, some promotional items and office stationery. Mr Van Erp said that although the post-industrial and postconsumer proportions of recycled fibre would be " a complete guess'' as far as he was concerned, napkins were made mainly of post-consumer recycled waste. In the U.K. the recycled part of carry out bags was mainly post-consumer recycled. In continental Europe the carry-out bag was 100% recycled but that was mainly post-industrial recycled material. All "top colours materials were fully post-industrial. Mr Van Erp thought that napkins sourced in the U.K. were over 90% post-consumer recycled. The cases for transporting Europa Carton's McNuggett, Fry, Pie and McRib boxes and cartons and some other restaurant packaging were about 75 or 80% recycled material which was all post-consumer, but this was in 1992. Polarcup was an important supplier and cases for transporting nearly all its products contained a large percentage of recycled material, but the company did not break the percentage down into post-industrial
and post-consumer, Mr Van Erp agreed that there was an increase in the recycled content of McDonald's European packaging in 1991. I saw letters from some suppliers. A supplier of kitchen towels wrote that McDonald's U.K. kitchen towels and toilet tissue would be produced from recycled paper only from 31st July, 1989. Mr Van Erp said that that supplier dealt mainly with post-consumer waste. A letter dated 19th October, 1990, from suppliers of Happy Hats and Birthday Hats wrote that they would start using recycled paper when their present stock was depleted. A letter dated 5th June, 1991, spoke of the increased cost of recycled paper place mats, with the fact that it was recycled paper shown on each place mat. There was no real information about the recycled content of McDonald's paper outside the U.S.A. and Europe, but equally there was no evidence that McDonald's paper packaging outside the U.S.A. and Europe was peculiar' y lacking in recycled content. Continental Europe itself is far less relevant than the U.S. where most McDonald's restaurants and the First Plaintiff's own restaurants are to be found and far less relevant than the U.K. where the Second Plaintiff's restaurants are. Mr Morris's contended that all this evidence showed that McDonald's used very little recycled paper before 1990 or 1991 which took us outside the period of relevant publication of the leaflet. I disagree. On the evidence which I have heard and read I conclude that between 1987 and 1989 McDonald's paper in the U.S. contained a small but nevertheless significant proportion of recycled fibre, certainly more than a tiny percentage, although I cannot say what the proportions of post-industrial and post-consumer were then because the distinction was not generally perceived to be important. By 1990 McDonald's U.S. packaging contained a substantial proportion of recycled post-consumer waste. The proportion of recycled paper in the O.K. was less clear because there was less information, but upon what I did hear and read I conclude that from the early 1980s McDonald's paper contained a small but nevertheless significant proportion of recycled fibre. I do not consider that the proportion of
recycled fibre in the Second Plaintiff's paper can fairly be said to have been tiny at the time of relevant publication of the leaflet (September, 1987, to September, 1990,), even though many paper items appear to have contained no recycled fibre at all, because paper carry bags, napkins and paper trays all of which featured significantly in the McDonald's system contained substantial proportions of recycled fibre from the early l990s. In my judgment, the recycled fibre in those items makes it impossible for me to hold that only a tiny percentage of the paper which U.K. McDonald's used during the 1980s was recycled paper. In addition to this there is the fact that during the relevant period of publication some paper towels and toilet tissue began to be produced from recycled fibre. They appear to have been post-consumer fibre as we-e napkins and carry out bags in the U.K. There is no doubt that the proport. on of McDonald's paper which is recycled has increased greatly from 1990 onwards in the U.S. and from 1991 onwards in the U.K. but this does not mean that the percentages of recycled paper were tiny before. I have considered the Defendant's contention that "recycled'' would mean recycled after use by the ultimate consumer, in the mind of most members of the public and the ordinary reader; but I do not accept this, although that might be a first and unjustified reaction because he or she might not think of the ways in which waste can arise after paper has been milled and sent off to a paper product manufacturer elsewhere, yet before the ultimate product has served its purpose. I thought that Mr Van Erp was a young man with a genuine concern for the environment, who had taken a job where he thought he could do some practical good. As I have already indicated, his view was that if material was internally recycled in a conversion plant or paper mill it should not be termed "recycled, but if off-cuts which occurred elsewhere at a different manufacturing plant were sent for recycling, he would consider that nrecycling'' because they are being kept out of the local industrial waste stream and put back to good use which lessens the use far virgin fibre. This seemed sensible to me and I believe that it would seem sensible to most people, whatever the perception has been in the
U.S. since 1991/2. No doubt the more information people have the better, and now that practice has changed in the U.S. it might well be deceptive in the U.S. to say simply that something is Recycled" if it consists substantially of post-industrial recycled fibre. But there was no evidence that the First Plaintiff has taken any such deceptive course in the U.S. since 1992, indeed the evidence was that it has not, and I do not consider that that course of action would be seen as deceptive in the U.K., yet at least. I consider that Mr Morris's argument that material can not fairly be called "recycled until it has completed a full circle or cycle from milling through manufacture and consumer use and back to milling, over-technical even by lawyers' standards. I do not accept the Defendants' argument that it is misleading to put "recycled papers on paper which is less than 100% recycled. paper cannot be recycled for ever, and much "recycled" paper has a proportion of virgin fibre to give it the necessary quality. There was no case that before the periods which I have considered either Plaintiff claimed to be using recycled paper when it was not. The dates of the Plaintiffs' claims to use recycled paper, which Ms Steel specifically drew to my attention, were not always clear but they all appeared to be from 1989 onwards. Ms Steel referred me to a sheet which she said was a page from a copy of Readers Digest. It has a McDonald's U.K. Logo and is headed 'Taking Initiatives in city streets and around the world.' It refers to customers at McDonald's picking up McFact sheets ''printed, of course, on recycled papers, and giving facts about the company's worldwide role in caring for the environment. The references to McFact sheets probably put it in 1989 or 1990 in my view, because Factsheets issued by the Second Plaintiffs' Public Relation Department in 1989 and 1990 have "THIS INFORMATION IS PRINTED ON RECYCLED PAPER" at the foot. One particular such Factsheet dated June, 1990, to which I will return, is headed, ''Recycling - The Factsn. In so far as I can read the photocopy, it includes the statement: McDonald's is already the largest user of paper in the quick service restaurant industry, we use it for non-food containment such as Happy Meal and paper towels as well as stationery at our Head
Office. Waste stationery paper is also being collected for return to a recycler." Ms Steel also referred me to a presentation given on behalf of the First Plaintiff on certain aspects of packaging. It is not clear to whom it was given or when. It must have been after 1988 because it refers to an experiment in Nottingham ,which started then, but not long before 1992 because it forecasts something which was expected to happen then. It says: "Well, we are heavily committed to the use of recycled paper. Kitchen towels, toilet tissue and Various promotional material are all made from recycled paper, and we are presently looking at head office stationery and even business cards. " Perhaps this last statement is an indication that it was prepared in 1989 or 1990. I was given too carry out bags containing various items of paper and foam packaging in the middle of the trial (probably in 1995) when I assume that they were in current use. The large U.K. carry bag has the familiar three arrows in a circle with Recycled Packaging" and "Made From Recycled Papern underneath. It has "Please Put Litter In Its Place " in a prominent position near the top of the bag. It bears the familiar impression of a stylised figure dropping litter into a bin. The small U.S. carry bag has "Made With Recycled Paper" in bold capitals in an obvious place near the handles. The three arrows appear, and then n* 50% Post-Consumer Content 50% PreConsumer Content" in much smaller print but immediately under an obvious legend " Please Put Litter In Its Place " near the bottom of the bag. Among its contents is a fry carton with the three arrows in a circle and "Recycled Paper."The trial bundles have a large number of documents published by both Plaintiffs which trumpet their use of recycled paper. By way of example only I note that a 1990 publication of the First Plaintiff entitled "McDonald's and the Environments has McDonald's arches in three recycled paper arrows and "Printed on Recyclable Paper.l It mentions McDonald's programme for recycling polystyrene and speaks of generating appropriate litter for recycling. There is a 1391 document from the First Plaintiff, also entitled "McDonald's and the Environment. Part of it, under the heading "Recycling" says: "McDonald's is one of the nations largest users of recycled paper products. Our trayliners, Happy
Meal boxes and bags, straw covers, napkins, and drink holders, and publications are all made from recycled paper. We've switched to recycled bags, made from recycled corrugated and newsprint, for all carry-out orders in the U.S. We directed our suppliers to ship out products in recycled corrugated, and we're expanding our corrugated recycling program to include every McDonald's across the country. " It goes on to speak of a "McRecycle U.S.A." programme introduced in May, 1990, and of the use of recycled items to build and furnish restaurants. The First Plaintiff's Environmental Policy Statement spoke of reducing, reusing and recycling what might otherwise be waste where possible and said: "We are committed to the maximum use of recycled materials in the operations of our restaurants. We are already a large user of recycled paper, applying it to such item as tray liners, Happy Meal boxes, take-away bags, take-away trays, napkins, kitchen rolls and toilet tissue. We specify that a minimum percentage of recycled material be used in the packaging of our food and paper products where possible." However, the polity statement was not seen in draft by Mr Van Erp until the end of 1991 or beginning of 1992, so it must have been published in 1992 when the proportion of recycled material in McDonald's paper had increased significantly. There may be earlier documents in the large number of trial ring binders, in which McDonald's trumpet their use of recycling paper but, if so, they were not specifically drawn to my attention. The documents to which I have referred point to a growing consciousness of the benefits and appeal of recycling from 1989 by which time both Plaintiffs were already using some small but significant amount of recycled paper, as I have already said. The contention that McDonald's were not doing enough to "Reduce, Reuse, Recycle" waste packaging, be it paper or foam, generated heat, but it did not help me to decide whether the defamatory charge which was complained of was true. The leaflet does not allege that the Plaintiffs have misled anyone about the amount of packaging which they reduce their need for, or which they reuse or collect for recycling or which they recycle themselves. The evidence did in my view produce two incidents of deception by the Second Plaintiff as to what they recycled.
Mr Oakley sai.d that the Second Plaintiff had instituted the recycling of west e in 1988 with a test in the Nottingham area "asking the public to recycle materials " in four restaurants. At some stage the exercise moved from Nottingham to a limited number of Manchester restaurants, but nothing was actually recycled because there was no " infrastructure " to do the recycling, so McDonald's were not in fact recycling their packaging. This involved collecting polystyrene packaging, not paper items. It was not until January, 1992, that the Second Plaintiff's plastic packaging suppliers had opened a polystyrene recycling plant in Cheshire and that only involved the five restaurants in the Manchester experiment. Yet a " Packaging the Facts, Fact Sheet No.4" dated June, 1990, put out by the Second Plaintiff's Public Relations Department, praised the environmental advantage of foam packaging over paper or carboard and said that the foam packaging used by McDonald' s .....is recyclable. It went on to say that foam packaging, being " on biodegradable matter aided decomposition in land fill by forming air pockets vital to the degradation process! At much the same time the First Plaintiff was stressing the advantages of paper packaging over foam packaging in the U.S. which had a landfill problem. "Recycling the Facts, Fact Sheet No.5 " with the same June, 1990, date, said: " We are currently running a pilot scheme at four restaurants in the Nottingham area to assess the potential of recyc:ling foam containers. Customers are asked to divide their waste, putting food remains and paper into one bin and recyclable foam cartons into another, the aim being that the foam is then collected for recycling into such things as plant pots, coat hangers, and insulation material for use in homes, even filling for vets." In my view the June, 1990, Factsheet knowingly gave a false impression for public relations reasons, that some of the Nottingham foam was actually being recycled, albeit only as a pilot scheme for possibly greater things. In fact the separated foam was not even being stored against the day when there would be an infrastructure. It was being dumped somewhere, because nobody had yet agreed to establish a recycling plant.
The plant in Cheshire did not even open until 1992 as I have said, and when Mr Oakley gave evidence in December, 1994, he did not know whether anything like plant pots, coat hangers, insulation, materials or duvet filling had come out of the plant, although he had seen such products in the U.S. When Mr Van Erp gave evidence, also in December, 1994, he said that the plant was open and producing a granulate which was sold to injection moulders who made articles like coat hangers and CD boxes. I was left with the impression that it had not been in production long. Mr Oakley himself was a direct witness. Whatever the public relations department cared to make of the purported environmental advantages of styro-foam packaging over paper, he made no bones about the fact that the reason for U.K. McDonald's not following U.S. McDonald's move away from foam to paper was that he thought that foam packaging made the product more presentable to the customer and kept it hotter longer. (When he was questioned about the alleged high fat content of McDonald's food he wanted to know what was wrong with that, which was very refreshing.) In about April, 1991, a complaint was made about an advertisement which appeared in Our Schools magazine, a publication aimed at schoolchildren aged four to eleven years, their parents and teachers. It was headlined "Go green -McDonald's and the environment" and claimed " Why do we continue to use foam cartons where paper could be used instead?....foam packaging is more energy efficient to produce than paper or cardboard in terms of protecting the environment and conserving energy. It is also fully recyclable unlike paper used with food which is coated with plastic, wax or silicone. Such papers are also not biodegradable; McDonald's prides itself on being an industry leader and responsible community citizen and its stance on important environmental concerns such as managing solid waste....is great. " The advertisement also invited readers to write for details Of "our recycling programme. " The complainant noted that the advertisers used a cardboard French fry box which included the claim "Recyclable Paper" and featured a recyclable logo. He thus questioned the advertiser's claims that such paper was not recyclable. He also understood that the advertisers were only assessing a pilot recycling campaign for foam cartons at four restaurants in Nottingham and he thus considered the implications that the advertiser ran a large recycling or waste management programme liable to mislead.
The Advertising Standards Authority upheld the complaint. The Second Plaintiff argued that the French fries box was recyclable as indicated in the logo because it was coated with water-based lacquer, and as the claim referred to plastic, wax, and silicone papers it was unobjectionable. The Authority considered the claim to imply that all paper used with food was non-recyclable and requested that the advertiser amend the advertisement so that this implication was removed. The Second Plaintiff also argued that the advertisement made no reference to the scale of their recycling campaign, and stated that they were only in the process of assessing a pilot recycling project. The Authority considered that it was misleading to refer to the advantages of materials being recyclable if the advertisers themselves were not engaged in recycling the material. Mr Oakley denied that the First Plaintiff was using the Nottingham cum Manchester project as a propaganda exercise between 1988 and 1994, but in my view it was putting a knowingly misleading spin on its as yet unproductive existence. This deception does not, however, in my view, help the Plaintiffs to substantiate the specific defamatory charge of lying about the recycled content of McDonald's paper. I have already repeated the leaflet's reference to tons of McDonald's paper packaging littering up the cities of developed countries. For reasons Which I will explain, I have come to the conclusion that it is not, in law, relevant to the issues which I have to decide in the case. The Plaintiffs doubted that the reference to litter amounted to a defamatory allegation at all, and they did not allege any defamatory charge relating to litter in their Statement of Claim. However, I understood the Defendants to argue that if the reference to litter amounted to a defamatory charge that the Plaintiffs were to blame for tons of their packaging ending up littering the cities of developed countries, they could substantiate it to their advantage, in partial justification of the leaflet in which it appeared or in diminution of any damages. The Plaintiffs, clearly sensitive about widespread allegations of responsibility for litter, picked up the gauntlet.
On balance, I do consider that the notional, ordinary, reasonable reader of the leaflet would infer a charge of culpable responsibility, blame, for litter from the Plaintiffs' discarded packaging. The leaflet as a whole is a severe attack on McDonald's, including the Plaintiffs, and the reference to litter is clearly meant to be another criticism of their conduct. The Defendants called evidence of McDonald's packaging found in the streets. They relied upon the common, international it seems, problem of litter dropping from carry-out food and drink containers and wrappings. More or less half of McDonald's business in the U.S. and U.K. is "drive-thru" or "take-away. There can be no doubt that far too much "drive thru" or "takeaway" McDonald's packaging is dropped in the street by inconsiderate customers. The Defendants said that by giving inconsiderate customers the opportunity to drop litter and by not clearing it up McDonald's were culpably responsible for it. The Plaintiffs contended that they could not be blamed for litter. They were entitled to give their customers what they clearly wanted in the way of take-away food and drink in disposable packaging. They took part in various initiatives to reduce litter. They called evidence that McDonald's founder, Mr Ray Kroc, had been very particular about clearing up litter in the vicinity of McDonald's restaurants and there was a long tradition of regular " litter patrols " or "trash walks " by McDonald's staff throughout the working day to clear up such litter. Some items of McDonald's packaging bore verbal or diagrammatic encouragement to be tidy. Bins were placed outside restaurants where by-laws restaurants were allowed. The Second Plaintiff, in particular, had lent itself to national and local efforts to combat litter. There was evidence concerning the efficiency or otherwise of litter patrols at certain McDonald's restaurants. In particular there was a lot of evidence relating to the restaurant in the King's Road, Chelsea. The evidence related to a period from April, 1991, when the restaurant opened, up to the time of the relevant witnesses, evidence at the beginning of 1995. Both sides seemed to accept that events there could cast some light on the issue of litter at the time of relevant publication of the leaflet 1987 to 1990) because practices relating to packaging and litter patrols, and the problem of litter generally, had remained much the same.
Two successive managers of the King's Road restaurant gave evidence of regular and effective half hourly trash walks with occasional longer patrols, and of a limited number of complaints. The standard trash walk was said to take ten to fifteen minutes, done normally by one person. The first manager who was there from the opening of the restaurant until May, 1993, said that the employees doing the patrols wore their own clothes initially, but a time came when they were made to wear McDonald's litter jackets in summer and well as winter. He said that if the litter patrols took place every half hour there was not much to pick up. "People do drop litter and there is litter, but we collect it so I would not say that it is a problem. "Mr Preston said that the proportion of McDonald's packaging that ended up as litter hardly registered. Speaking of the situation after stores had done their walks after the trading day was over he said that the amount of litter from McDonald's packaging was: "Too small to count in the scale of things. If I feed a million people in the U.K. today and they all bought a soft drink or a cup of something, I bet in the entirety of the U.K., feeding a million people, we would not find, I don't know, a 100 cups, 150 cups." I find this impossible to accept. It was an exasperated answer and a rose-tinted view of the extent of the problem. Despite the Plaintiffs' evidence, I found the evidence of Mr Colin McIntyre, a resident of Smith Street near the Ring's Road restaurant, convincing. Mr McIntyre was a founder member of the Smith Street Residents Association. The essence of his evidence was that ever since the local McDonald's opened his street had suffered from litter by its customers. It was the most identifiable cause of litter because of the markings on its packaging. Mr McIntyre gave evidence in January, 1995. He thought that Smith Street got the worst of McDonald's litter because it was the first clear street going south and people who were going to leave the King's Road going south would park their cars there. He took photographs and had done a litter count on one occasion because he expected to give evidence and he had heard one of McDonald's witnesses, the current manager. He very fairly said that he could not say if the count was typical because he did not normally count, but it was not exceptional. He had noticed the same kind of litter in other streets.
Mr McIntyre said that when McDonald's opened in the King's Road they picked litter up. There were patrols two or three times a day. But the patrols stopped in 1992 and he would say that litter was much the same in 1992, 1993 and 1994. There had been no regular patrols since 1992. When he saw a McDonald's wheely-bin at 8.15pm on Tuesday, 16th August, 1994, it was sufficient of an occasion to be a source of amusement. Mr McIntyre said that the litter patrol described by McDonald's witnesses took him twelve to fifteen minutes to cover, stopping to look at litter but not to pick it up. This was realistic timing, in my view, having walked it myself at Ms Steel's request. Mr McIntyre is a retired journalist who works in his ground floor front room looking out over Smith Street about five hours a day, seven days a week, writing military history books. He can see anyone who passes. He impressed me as an honest witness. I think that he may have missed some McDonald's litter patrols although he was adamant that he would have seen them if they had come past. One cannot look out of the window all the time when one is working, much as one would like to do so. But the August, 1994, occasion of amusement had the ring of truth, and I conclude that there was a problem with litter from the Ring's Road restaurant from 1992 on and that patrols were only going out very rarely if at all from the restaurant on the designated route which included Smith Street, in order to solve it. Mr McIntyre did say that he had seen uniformed members of McDonald's staff about fifty yards either side of the restaurant cleaning up litter. My conclusion is that staff were sent to clear up litter from the Ring's Road restaurant from time to time but that save on a rare occasion they stayed close to home after an initial conscientious period when it was clear from other evidence that the restaurants performance was under particular scrutiny. Of course the Ring's Road was only one store. There was some evidence from Ms Steel herself, which I have no reason to doubt, of McDonald's packaging littering streets near other stores. On the other hand the Defendants called a number of McDonald's employees or ex-employees from other stores, mostly about employment practices, and by and large they did not lead them to give evidence of the absence of litter patrols as they could have done if such patrols were generally lacking. Mr Simon
Gibney who said that litter patrols were very rarely done at the Colchester restaurant between 1984 and 1987, and then usually as a punishment, did say that the area outside the front of the restaurant was kept free of litter by the Lobby Hostess. In my view the inherent likelihood is that if there was a litter problem near the King's Road restaurant, there was a similar problem near a significant number of other restaurants, at least in the U.K., because there are bound to be common features such as pressure on staff to be doing other jobs than litter patrols at busy times and the fact that the litter patrol itself is not attractive work. If the litter patrols were being neglected at the Ring's Road store, in its prestigious location, I would not expect them to be better generally elsewhere. On the other hand I am satisfied that the two Plaintiff companies themselves take the problem of litter seriously and that litter patrols and other attempts to limit litter are a genuine company policy. The failures are at restaurant level and against company policy. Having said all this, I do not consider that what the Defendants have established in this small sector of the case helps them, for the following reasons. Firstly, I consider that the litter charge is a charge which is separate and distinct from any other charge made in the leaflet and relied upon by the Plaintiffs. If the leaflet had contained a general charge of McDonald's bad influence upon the environment or a general charge of the bad effects of McDonald's packaging including its methods of manufacture and disposal upon the environment, the litter charge might well have been considered a relevant part. But the environmental charge in which the litter allegation is set is one of environmental damage by destruction of the rainforest, and I do not consider that blame for litter can be dressed up as part of that charge, so as to justify it in part. Nor do I consider that it can be seen as part of the charge that McDonald's, including the two Plaintiffs, are lying when they claim to use recycled paper, so as to justify that charge in part. The truth is that the litter allegation is an additional, separate and distinct side-swipe at McDonald' s. There is no common sting with what surrounds it, in my view. As a matter of law, where a publication like the leaflet complained of contains two or more separate and distinct
defamatory statements, the Plaintiff is entitled to select what he chooses for complaint and the subject of proceedings, and the Defendant is not entitled to assert the truth of another by way of justification. Why the Plaintiffs did not complain of the allegation about litter in their Statement of Claim - whether, for instance it was because they were doubtful that the words in the leaflet did allege blame, or because they might be on dangerous ground, or because they thought it insignificant compared with other charges in the leaflet - cannot concern me. Since I see the litter allegation as a separate and distinct charge upon which the Plaintiffs have not chosen to sue, I can take no account of it. In any event, I am far from persuaded to the standard required that McDonald's, including either Plaintiff, is in ordinary good sense "to blame" or culpably responsible for litter which has left their restaurants as packaging in customers' hands. I do not consider that they can fairly be blamed for it just because they have provided disposable packaging. The Plaintiffs clearly feel some understandable civic obligation to clear up that which falls reasonably near to its restaurants. Mr Preston said so. A lot of other store keepers who sell products in disposable packaging feel the same way in relation to litter which is dropped immediately outside their stores, although this may be partly because they want to keep their store fronts attractive. My conclusion from the evidence which I accept is that McDonald's restaurant frontages have been kept clear of litter, but that the system of regular patrols to clear up litter rather further afield has often broken down. I do not, however, consider that failure to achieve their objective of more extensive clearance makes them culpably responsible for what is left on the streets away from the actual fronts of their stores, or responsible at all for items of their packaging which are dropped some munching or drinking distance away. In my judgment the blame for all that lies firmly on the inconsiderate customer. Taking all these matters into account, I find that the defamatory charge that the First and Second Plaintiffs are lying when they claim to use recycled paper is not justified, even in part. It is not true.
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