[ judgement day logo ]
Justice Bell's Verdict
19th June 1997

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.

7. Advertising.

The next section of the leaflet turns to McDonald's advertising and marketing. The leaflet's references to McDonald's food, heart disease and cancers of the breast and bowel involved some consideration of McDonald's marketing, advertising and promotion to the public at large. The next section deals specifically with advertising and other means of promotion, particularly as far as children and the things which appeal to children are concerned.

In the picture on the very front of the leaflet the evil looking figure in the cowboy hat holds a Ronald McDonald face mask which partly conceals his own features. Ronald is a character much used in McDonald's television advertisements and in its marketing generally, aimed at young children. Actors wearing his distinctive uniform, wig and make-up regularly take part in McDonald's promotions of various kinds.

The first page of text contains the words, "We're all subject to the pressures of stupid advertising, consumerist hype..."

Immediately after the section of text dealing with McDonald's food and heart disease and cancers of the breast and bowel a box appears with the headline "Getting the Chemistry Right" and the text: "McDonald's stripey uniforms, flashy lighting, plastic decor, "Happy Hats" and music, are all part of the gimmicky dressing-up of low quality food which has been designed down to the last detail to look and feel and taste exactly the same in any outlet anywhere in the world. To achieve this artificial conformity, McDonald's require that their "fresh lettuce leaf", for example, is treated with twelve different chemicals just to keep it the right colour at the right crispness for the right length of time. It might as well be a bit of plastic."

There is then a headline in bold print, asking: "How do McDonald's deliberately exploit children?" The text beneath the headline reads:

"Nearly all McDonald's advertising is aimed at children. Although the Ronald McDonald personality is not as popular as their market researchers expected (probably because it is totally unoriginal), thousands of young children do think of burgers and chips every time they see a clown with orange hair."

There is then a sub-heading "The Normality Trap", followed by the text:

"No parent needs to be told how difficult it is to distract a child from insisting on a certain type of food or treat. Advertisements portraying McDonald's as a happy, circus-like place where burgers and chips are provided for everybody at any hour of the day (and late at night), traps children into thinking they aren't "normal" if they don't go there too. Appetite, necessity and - above all - money, never enter the "innocent" world of Ronald McDonald.

Few children are slow to spot the gaudy and yellow standardised frontages in shopping centres and high streets throughout the country. McDonald's know exactly what kind of pressure this puts on people looking after children. It's hard not to give in to this 'convenient' way of keeping children 'happy', even if you haven't got much money and you try to avoid junk-food."

There is then a further sub-heading "Toy Food", followed by the text:

"As if to compensate for the inadequacy of their products, McDonald's promote the consumption of meals as a 'fun event'. This turns the act of eating into a performance, with the 'glamour' of being in a McDonald's ("Just like it is in the ads!") reducing the food itself to the status of a prop.

Not a lot of children are interested in nutrition, and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they're seduced into eating is at best mediocre, at worst poisonous - and their parents know it's not even cheap."

In their Statement of Claim, the Plaintiffs complain that those parts of the leaflet bear the defamatory meanings or charges; firstly, that the Plaintiffs use gimmicks in their restaurants to cover up for the fact that the food is of low quality; secondly, that in order to ensure that their food looks the same throughout the world the Plaintiffs require it to be treated with numerous chemicals; thirdly, that they nearly always use advertisements whose object is to trap children into thinking they are not normal if they do not go to McDonald's and who accordingly, as the Plaintiffs intend, pressurise their parents into taking them there; and, fourthly, that they promote the consumption of meals at McDonald's as a fun event when they know full well that the contents could poison the children who eat them."

It is convenient to deal with the first three charges now, and to return to the fourth after I have dealt with the to the question of food poisoning which has its own, later, place in the leaflet.

In my judgment, the leaflet does bear the first three meanings which the Plaintiffs allege. The Defendants did not really dispute them. The charges are clearly made against both Plaintiffs, again as the company responsible for McDonald's worldwide and the company responsible for McDonald's operations in the country where publication is complained of. However, it is important to distinguish what is defamatory from what is not. So far as the first charge is concerned, it is not in my view defamatory to say that the Plaintiffs use gimmicks. Many marketing companies do so, and I do not believe that this on its own would lower either Plaintiff in the estimation of reasonable people. Nor in my view is simple disparagement of the Plaintiffs' food as "low-quality" or "at best mediocre" defamatory. It was argued that the ordinary reader would treat those terms as a reference back to the allegations that the high fat and sodium and low fibre content, for instance, of McDonald's food led to a risk of heart disease and cancers of the breast and bowel, but I do not read the rather insipid criticisms of "low-quality" and "at best mediocre" in this way, even though they come immediately after the section of the leaflet which refers to diet and degenerative disease. In my view, in this hard-hitting leaflet, the reader would expect a reference to ill health if that was what was meant. After all, the term "at worst poisonous" which must be a reference to the risk of poisoning alleged later, is used. In my judgment the terms "low-quality" and "at best mediocre", which come to the same thing, are just general terms of disparagement like "junk food".

What is, in my view, defamatory about the first charge is the allegation of covering up the food's quality at all, so far as children are concerned. It is part of the theme of alleged deception which runs through the leaflet.

So far as the second charge is concerned, I do not believe that it is defamatory of the Plaintiffs to say that they ensure that their food looks (and feels and tastes) the same throughout the world and I do not believe that they complain of this statement. It is part of the appeal of their food, to those who enjoy it, that it does look and taste the same wherever it is bought, and both Plaintiffs go to considerable efforts to ensure that this is so. If there is to be a defamatory element in the second charge it can only be that the Plaintiffs require their food to be treated with numerous chemicals in order to achieve this end. It is for the Plaintiffs to satisfy me that any particular allegation made in the leaflet is defamatory, and on balance I am not satisfied that the allegation of the use of chemicals for consistency of product would tend to lower either Plaintiff in the estimation of reasonable people generally. Had the allegation been the use of chemicals which the Plaintiffs knew to be potentially dangerous, the position would be different. But the leaflet does not either expressly or implicitly in my view allege danger from chemical treatment of the Plaintiffs' food products. Had the Plaintiffs alleged that the leaflet charged extravagant overuse of chemicals, which it might have done in the light of the reference in the leaflet to the use of twelve different chemicals on lettuce, which the Defendants never substantiated, the position might have been different, but the Plaintiffs did not plead any such meaning, and in my view such a meaning would be more serious than the one which is pleaded and relied upon. The ordinary reader knows that much of the processed food which he habitually eats contains added chemicals as preservatives and colouring, and whether or not he likes this fact of life, I do not believe that he would think it defamatory of his food suppliers for anyone to point it out. So, although the leaflet bears the second charge pleaded by the Plaintiffs, it is not defamatory of them, in my view.

I will return to the matter of additives when I come to food poisoning.

The third charge is clearly defamatory. The real sting is the extensive exploitation of children by using them, as more susceptible subjects of advertising, to pressurise their parents into going to McDonald's. The "normality trap" is a detail, in my view.

The defamatory parts of the first and third charges are clearly damaging to the trading reputation of both Plaintiffs, making people reluctant to deal with the First Plaintiff as the company which is responsible for McDonald's generally and the Second Plaintiff as the company responsible for McDonald's in this country where publication of the leaflet is complained of.

In my judgment the defamatory allegations in this part of the leaflet are presented as simple statements of fact. Had the terms "low quality" and "at best mediocre" been essential to the defamation, and had they been presented as expressions of opinion in the text, they could very readily have been treated as comment. As it is, they are used as terms of simple description. So the defence of fair comment does not arise, in my view, but the Defendants argued that the allegations were justified.

Against that background, the main factual questions in this part of the case, so far as the first and third pleaded charges are concerned, seem to me to be as follows.

Firstly, how much of the Plaintiffs advertising and marketing has been directed at children? How important does McDonald's think that children's advertising and marketing is?

Secondly, is their children's advertising and marketing directed at children to trap them into thinking that they are not normal if they do not go to McDonald's?

Thirdly, is it directed at children with a view to them pressurising or pestering their parents to take them to McDonald's and, thereby, to take their own custom to McDonald's.

Answering the last two questions involves consideration of whether children are more susceptible to advertising than adults, and whether McDonald's advertising takes advantage of this and, indeed, seeks to deceive children.

Finally, do the Plaintiffs use gimmicks and the impression that it is fun to eat at McDonald's, to cover up the quality of their food?

The evidence called by both sides turned into something of an enquiry into the merits of McDonald's advertising and of food advertising generally, but answering those questions will,in my view, enable me to judge whether the first and third charges in this part of the case are justified. The fact that most of the witnesses on both sides gave evidence which related to a number of the questions which I have posed, makes it difficult to take the evidence on each question separately, question by question; but I will start with the parts of the evidence which I found most helpful on the first question.

The Plaintiffs' evidence on the extent to which McDonald's advertised to children was given primarily by Mr David Green and Mr John Hawkes. Mr Green has worked for the First Plaintiff in the U.S. in various marketing posts since 1972. I have already said that he is its Senior Vice President of Marketing. Mr Hawkes has held various marketing positions with the Second Plaintiff and McDonald's Development Company (MCD) since 1982. I have already said that he is the Second Plaintiff's Chief Marketing Officer. I had no hesitation in accepting their evidence in so far as it related to advertising figures, but their interpretation of the figures and their evidence of the Plaintiffs' motives had to be measured against all the evidence put before me.

The effect of what Mr Green told me was that each year in the U.S. a figure amounting to about 5 to 6% of McDonald's restaurants' sales revenue was spent on national and local advertising together. An additional sum was spent by the First Plaintiff itself on production costs and marketing department salaries. In 1993 this was a figure which amounted to about a further 10% of the 5 to 6% figure. There was also a separate marketing budget in local areas.

Taking all these factors together it appears to me that from a time before the relevant publication of the leaflet, a figure equivalent to about 6 to 7% of McDonald's turnover has gone on advertising and marketing in the U.S. each year.

According to the First Plaintiff's annual reports its U.S. sales were $12 billion in 1989 and $12.25 billion in 1990, rising to $14.2 billion in 1993. This means that very large sums, varying from about $800 million to over $900 million must have been spent in the U.S. on advertising and marketing by the First Plaintiff over those years.

It appears that the systemwide (worldwide) percentage of turnover spent on advertising and marketing has been much the same as that in the U.S., in that in 1990 when systemwide sales were $16.75 billion there was said to be a $1 billion marketing budget, and in 1993 when systemwide sales were $23.6 billion, advertising and promotion totalled about $1.4 billion - about 6% of sales in each case.

Mr Green told me that, for the purpose of McDonald's advertising, young people were divided up into two age groups; those up to the age of nine or ten at the most, who would enjoy Ronald McDonald to whom I will return later; and "tweens" up to the age of fifteen or sixteen who were "too old for Ronald and too young for the car keys". Both groups are obviously children. He said that in the years 1989 to 1991 about 10% of the U.S. advertising budget was spent on advertising which was directed at children.

Mr Hawkes told me that in the U.K. the Second Plaintiff spent about 5% of its stores' turnover on national advertising and about 1% of individual restaurants' turnover went on local advertising: a total of 6%. It varied year by year, but not by much.

Television was the key advertising medium used by McDonald's in this country, followed by radio, outdoor and some magazines and the Press.

Mr Hawkes gave me figures for national media expenditure on "adults" and "kids" up to the age of about eight. 90% of that expenditure went on T.V. In 1986 total media expenditure was about 9 million, 2.8 million (about 32%) of which went on "kids". In 1989 the figures were 17.75 million and 4 million (22.5%); in 1990, 21.1 million and 3 million (14.67%); and in 1992 25.5 million and 3.7 million (14.66%).

Mr Hawkes thought that when he arrived at McDonald's in 1982 the percentage of the media budget spent on children's advertising was "around the kind of scale of 1986".

The Second Plaintiff's 1992 Media Plans Revision showed a total media budget of 25.4 million of which 20.1 million, or about 80%, was attributed to television. Of that 20.1 million, 2.7 million (13.4%) was specifically attributed to children. 16.5 million (82%) was specifically attributed to adults and 0.85 million (about 4%) was on the presumably common ground of TV AM and satellite.

I note that in the Media Budget Breakdown Plan for 1990, the proportions were broadly similar although the budget was about 14% less. I cannot readily find equivalent information in earlier Media Plans.

There was no reliable estimate of the percentage of McDonald's worldwide marketing budget, which was spent on advertising and marketing directed at children.

McDonald's adduced the evidence of the proportion of U.S. and U.K. advertising and promotion budgets, which was spent on children's advertising, with a view to showing that it was a relatively small percentage of the whole; but in my judgment expenditure alone does not truly reflect the proportion of McDonald's advertising which was and is directed at children.

It is clear that the vast majority of advertising expenditure goes on television advertising and that children's television advertising time is less expensive than adult time, especially "primetime". This is because adult advertising is generally more lucrative; the adult audience is much larger than the children's audience, and for adult time the advertiser has to pay rates which are competitive with big players like car and washing powder manufacturers rather than smaller players like toy manufacturers and toy shops.

There are other methods of calculating the proportion of McDonald's advertising directed at children, albeit in broad terms only.

The advertising industry uses a system of "gross rating points" (GRP) calculated from that portion of the audience which forms the advertiser's target and from the number of times that the advertisement is shown. Thus the GRP gives some indication of the estimated exposure of the advertisements which are run. For instance 7 rating points mean that 7 in every 100 people in the target audience should see an advertisement, and 100 points means that every potential customer should see an advertisement once in a week.

Mr Green told me that in an average week McDonald's in the U.S. would buy "somewhere in the neighbourhood of 300 and 350 gross rating points against adults" and "maybe 100 to 150 gross rating points to children".

In my view the GRP approach would, therefore, mean that something between about 28% (100 against 350) and 50% (150 against 300) of McDonald's U.S. television advertising was aimed at children, although the bracket which Mr Green gave was lower.

Another approach is to consider the numbers of advertisements shown.

Mr Green said that there were a lot less children's advertisements, taking into account the fact that children's television advertisements were concentrated in short time spans.

From this and the relationship of adult gross rating points to children's gross rating points, he felt able to express the view that in the U.S. an average adult would watch a McDonald's advertisement about three or four times a week, whereas children would watch a McDonald's advertisement in their time period about twice or three times a week.

When brought back to this topic during cross-examination by the Defendants, Mr Green said that there were four times as many potential watchers of advertisements shown in adult television time as there were in children's time. If one took both television and radio (where McDonald's advertising was directed at adults only), "for every eight messages that an adult receives, a child receives about three". If one took television on its own the ratio was about five to three.

Later Mr Green said that in the U.S. the average adult saw a McDonald's television advertisement about 270 times a year and heard a radio advertisement about 140 times a year. The average child saw a McDonald's television advertisement about 170 times a year. These figures of 410 to 170 and 270 to 170, are pretty much in the same ratios as 8 to 3 and 5 to 3.

Mr Green thought that the ratios and percentages to which he referred in his evidence had stayed the same since 1989 and 1990.

Mr Hawkes told me that McDonald's bought television ratings in the U.K. as in the U.S. Although he did not feel qualified to explain the rating system, it appeared to be the same as that in the U.S. He said that the Second Plaintiff bought about twice as many adult ratings as children's ratings.

Mr Hawkes also said that in the years between 1987 and 1992 the Second Plaintiff made many more television commercials specifically for adults than for children; but he accepted that, save in respect of Happy Meal toy promotions which required new advertisements, children's advertisements could be shown over longer periods and they did not have to be changed as often as adult advertisements, partly because new children arrived in the audience as older children left it, which did not happen to the same extent with adults.

The Defendants did not call evidence which directly challenged the Plaintiffs' figures of actual expenditure and ratings. Their real challenge was based on information as to the frequency with which children's advertisements were shown by McDonald's in the U.K.

I was taken in considerable detail through Leo Burnett Advertising's Media Plans for McDonald's for the years 1987 to 1992. Those Plans showed the weeks during which children's and adults' television advertisements for McDonald's were shown in various market areas.

In many areas for some years, advertising directed at children was shown in more weeks than advertising directed at adults. In 1987 McDonald's advertised in more weeks to children than to adults in seven of the U.K. television regions. In 1989 and 1990 there were more weeks of children's advertising than adults' in all regions. However, the total target audience or "universe", where shown, appeared to be greater for adult television than for children's television. In some weeks there might be limited numbers of advertisements of varying length shown to a limited audience, and even where there were more weeks of children's advertising than adult advertising, the "spend" on adult advertising was normally much greater than on children's advertising, although this might have been because of the greater cost of adult advertising which I have already explained.

Ms Steel particularly prayed in aid the advertising records week by week for Scotland according to the Media Plans for McDonald's.

In 1987 in Central Scotland they advertised to children in three weeks, but not at all to adults; and in the Border region they advertised to children in two weeks, but not at all to adults. That was when McDonald's was starting up in Scotland.

In 1988, 1989 and 1990 McDonald's advertised in more weeks to children than to adults in all regions.

In 1988 in Border there were 42 weeks of advertising to children and 8 to adults, in Central Scotland 41 to 6 and Grampian 41 to 4.

I am not satisfied that the numbers of weeks in which McDonald's advertisements were shown on children's television on the one hand or on adult television on the other help me to a realistic comparison of the degree to which McDonald's advertising is aimed at children as opposed to adults, any more than I am satisfied that amounts of expenditure give me a realistic comparison. On the one hand it seems to me that some of the greater number of weeks in which children's advertisements are shown is attributable simply to a more even spread of those advertisements. On the other hand some of the greater expenditure on adult advertising is attributable to the greater unit cost.

Ms Steel's exercise with the Scottish T.V. figures was probably explained by Mr Hawkes' evidence that there had been occasions when McDonald's had gone into a new area of the United Kingdom and had at first advertised on television to children only, although mothers might see the advertisements. The purpose was to reach families through children. It had last happened in Scotland in the U.K. and that was several years ago. It appeared that the same thing had happened when McDonald's went into some other new countries or areas elsewhere in the world. Mr Beavers agreed that this was so. This does of course underline the importance of advertising to children.

It seems to me that the gross rating points are the most accurate means of comparison taken with Mr Green's ratios of the numbers of times when an adult on the one hand and a child on the other were likely to see a McDonald's advertisement.

I accept that Mr Green and Mr Hawkes were doing their best to help me when they gave their estimates.

I take some account of what must be obvious, namely that children will watch McDonald's television advertisements shown during "cross-over" times or early adult time which starts at 7p.m. Mr Green said that some children watched in adult time, and some adults watched in children's time, but I would expect to find more children, certainly in the "tweens" age group of about nine to fifteen but also even younger, watching adult television than adults watching genuine children's television. I would expect McDonald's to take account of this. Indeed Mr Hawkes accepted that tweens watched a lot of adult programmes and therefore saw McDonald's advertisements geared for adults. So some of the adult advertising, so classified, was biting on tweens who were children up to the age of fifteen. Advertisements like the World Cup advertisement would appeal to virtually all ages.

Doing the best that I can, I estimate and find that something like 40% of McDonald's television advertising, that is rather more than a third and less than half, has been aimed at children, but that a good half of it must have been seen by children, in both the U.S. and the U.K. I have no evidence to point to the situation being different elsewhere in the world.

Although it is not, therefore, accurate to say, as the leaflet does, that "nearly all McDonald's advertising is aimed at children", a very substantial proportion of it clearly is, and the difference between "nearly all" and something approaching a half seems to me to be immaterial so far as the thrust of the leaflet is concerned.

The Defendants set out to prove that McDonald's spent much more on marketing and, in particular, advertising, than its competitors or other brand name companies, with a view to underlining the amount spent on children's advertising.

Mr Green said that the fast food or quick service restaurant (QSR) industry, and therefore its advertising, had grown considerably in the last eight or nine years.

He accepted that McDonald's was high in the list of the most advertised single brands. The First Plaintiff's 1989 Annual Report declared that: "In 1989, McDonald's continued to enjoy our position as the most advertised single brand in the world". Whether it was true or not, McDonald's was clearly proud to make the claim.

Ms Sue Dibb, who was called by the Defendants, gave some evidence on this topic. Ms Dibb is Co-Director of The Food Commission, for which she has worked since 1984. She is also project officer for the National Food Alliance's working party on advertising. Ms Dibb produced figures published by a trade association for people involved in advertising and marketing, which showed McDonald's as the second largest brand advertiser in the U.K. in 1993, spending much more than its fast food rivals or any other product, although I note that one large supermarket chain was first and another was third. McDonald's is bigger than its quick service restaurant rivals.

On the other hand an attempt was made on behalf of McDonald's to demonstrate, by reference to figures taken from a U.S. magazine, that one of McDonald's competitors in the U.S. spent a greater proportion of its sales revenue on advertising. Those figures proved unreliable, however.

By reference to a table of Advertising Sales Ratios of 290 markets for 1990, Mr Hawkes claimed that the percentage of sales which McDonald's spent on advertising was not exceptional in a very competitive market.

I have the same difficulty with all the figures put before me on comparable advertising spend. There was no evidence that the figures produced were accurate, particularly in so far as they related to companies other than McDonald's.

More important, in my view, was the readily acceptable evidence of Mr Green and Mr Hawkes that the quick service restaurant industry, and particularly the burger house sector of it, is very competitive and that brand image is very important.

It is important to McDonald's to make the brand well known and once McDonald's and its products are well known to customers it is important to keep them "top of mind", in Mr Hawkes' words. This accorded with Ms Dibb's view that the effect of McDonald's advertising was to have a fairly constant reminder of McDonald's.

At the end of the day, there was no convincing evidence to show that McDonald's spending on advertising and promotion in relation to its sales was high for the quick service restaurant industry or the burger house sector. The whole of the industry advertises intensively.

Mr Green accepted that McDonald's spent more money on children's advertising than its competitors. He did not, however, know whether it spent more than its competitors in proportion to sales.

Ms Dibb gave evidence of a survey which she carried out for the Food Commission in February,1990. It monitored ITV advertisements during a week of children's programmes between 4pm and 5.10pm on Monday to Friday and between 8am and 1pm on Saturday. McDonald's was the fifth most highly advertised food product out of forty-two different products, with five advertisements. A follow up survey in May,1992, placed McDonald's second with seven advertisements. Again, however, I do not have the information which would be required to relate numbers of children's television advertisements to the turnover of McDonald's compared with other providers of food for children.

At the end of the day I was left unconvinced that McDonald's spent more money in relation to its size and turnover than other companies whose products were attractive to children. What was clear was that McDonald's has for a long time put a high commercial value on its advertising and marketing, not just generally, but to children in particular.

This is not only clear from the large proportion of its advertising and marketing which is directed at children. It is clear from what the Plaintiffs' own documents say, and from the prominence of Ronald McDonald and of other features to attract children, with which both Plaintiffs identify themselves.

McDonald's has a system in the U.S. whereby representatives of restaurant operators from each region are elected to serve on an Operators' National Advertising (OPNAD) Fund committee whose primary purpose is to evaluate and approve the media purchases to be made by OPNAD on behalf of its members. The 1989 OPNAD Fund Annual Report referred to "new threats to our kid marketing franchise" and to "the fact that McDonald's has become the target of self-serving nutritional and environmental "experts", and that it has become more difficult, perhaps, than ever before to increase sales in the current business climate". However, it reported that "McDonald's continued to strengthen its number one position among kids", before referring to "the Ronald McDonald theme and tween advertising" and listing promotions whereby OPNAD "supported its kid business".

Ronald McDonald has been at the heart of McDonald's marketing, both in television advertising and in individual store promotions for a long time.

Mr Green said that Ronald McDonald had been the central feature of McDonald's advertising to children in the younger age group from about two to eight years of age throughout Mr Green's twenty-odd years with McDonald's. Mr Green described him as a "character that represents McDonald's to children. He is a sort of host in McDonaldland which is a bit of a fantasy world that is created around Ronald McDonald. He is a very pro-social character. He has the same kinds of values that you would want for your son or daughter. He is tried to be used in a very positive manner. Children ........relate to clowns...... We use him in that manner."

Mr Green was not offended by the suggestion that Ronald was a means of increasing sales among children in particular, but families in general. "He is a very effective trademark and children love him. Therefore, they are more prone to go to McDonald's if they like him."

The Defendants sought to show that actors, including an American actor called Geoffrey Giuliano who provided a Civil Evidence Act statement, had protested at their role selling McDonald's to children. According to Mr Green, the various actors who play Ronald around the U.S. and the actors who played

Ronald in the television advertisements, tended to stay a long time. Mr Green did not know of an actor called Geoffrey Giuliano playing the role of a principal Ronald. He had never heard of such an actor confessing to brainwashing children. Mr Hawkes thought that most of the U.K. actors stayed in the work for quite a while.

Ronald not only appears in television advertisements. In the U.S.A. he visits schools to provide entertainment and to give a message on a topic like bicycle safety. The Sales and Marketing Section of McDonald's Operations and Training Manual for 1990/1991 produced in the U.S.A. but used worldwide, encouraged store managers and franchisees to have Ronald makes personal appearance at their stores. "Ronald loves McDonald's and McDonald's food. And so do children, because they love Ronald." The Manual went on to describe Ronald as a strong marketing tool.

Other children's promotions, not involving Ronald, are also important.

The Sales and Marketing section of the 1990/91 Manual said

that children's Happy Meals were a very successful programme targeted at McDonald's younger audience; that offering free premiums (gifts) was one of the best things a licensee or manager could do to make children loyal supporters of a restaurant; and that the McDonaldland Fun Times magazine was the most widely circulated children's magazine in the world and a constant reminder of McDonald's.

Mr Green agreed with all that. So did Mr Hawkes, with the reservation that the McDonaldland Fun Times was not published in the U.K.

The idea of the Happy Meal is that a combination of a soft drink (but not milk or fruit juice), a burger and fries, is offered for sale at a fixed price. With the meal comes a premium. This form of promotion has been used both in the U.S. and the U.K.

Mr Hawkes said that toy promotions were very popular. The gift toys, or "premiums", came in sets of four over a four week period, a different one each week, the aim being to attract the child and family to come to a McDonald's restaurant in each of the four separate weeks to collect the set.

Obviously the aim was to get the child collecting the premiums and returning for the full set.

Why all this effort and expense to attract children?

The children's market is lucrative in itself. Mr Green told me that the average number of child visits a year in the U.S.A. was twenty per child. That is to say, the number of child visits was twenty times the number of children. This certainly demonstrates McDonald's popularity with children.

The December,1991, Customer Profile reported between 4.7 and 4.8 billion customer visits in each of the years 1986, 1987, 1988 and 1991, an average of 19.2 and 19.6 per head of the population. The figures in 1991 for those aged 0-7 were 520.9 million, for those aged 8-13, 352.1 million, and for those aged 14-17, 323.1 million. There were 64.5 million children up to the age of 17. They made about 1.2 billion visits to McDonald's, an average of 18.5 visits a head. Their custom accounted for a total of 25% of visits to McDonald's according to the Profile. That was what Mr Green was thinking of when he gave an average of about twenty visits per head. Some children, of course, visited more often; some visited less, and no doubt some children never went to McDonald's at all.

The 1991 Customer Profile reported that "The McDonald's customer base is getter older like the rest of the population with per capita visits declining for most segments under 45 years. A notable exception is the Ronald segment (0-7 years of age) which has shown per capital visitation gains ... (plus 3.6 visits to 17.6 visits)."

Moreover children are on attractive target as possible customers for life. Mr Green said that children who visited McDonald's might lose interest as they grew older, but then return as customers later in life.

However, in my view children are clearly seen by McDonald's not just as a market in themselves, but also as a way of persuading their parents to go to McDonald's.

The Operations and Training Manual for 1990/91, stated that: "Children are often the key decisions makers concerning where a family goes to eat. Although the parents decide when to go out, the children many times "decide" where to go."

The 1990/91 Manual said: "Remember, children exert a phenomenal influence when it comes to restaurant selection. This means that you should do everything you can to appeal to children's love for Ronald and McDonald's".

Mr Green said that he thought that "phenomenal" was a bit over-played, but children certainly exerted some influence. The latest information that he had was that they played an active role in the selection of a restaurant about half the time. He agreed that Ronald was a strong marketing tool.

Mr Hawkes said that the perception of the influence of the child was that the child had influence but the parents ultimately decided where to go. However, the child's influence might be the determining factor.

Mr Hawkes did not think that part of the manual told us anything more than that children had an influence on where to go within the fast-food sector as opposed to when. He agreed that Ronald was still a very useful sales tool. He was the personification of McDonald's to young children. But the parent always reserved the right to say "no" to the child.

Mr Hawkes said that the point of advertising to the Ronald McDonald age group was to put over that McDonald's was a fun place which they would wish to visit so that when the family proposed to eat out the child would ask to go to McDonald's. McDonald's hoped the child would influence the choice of restaurant which the parent selected within the fast-food category. The purpose of advertising to children through Ronald was to get young children who did not come to McDonald's by themselves to talk to their parents to encourage them to bring them into McDonald's.

He said that there was no issue that McDonald's advertising portrayed not just the food but the whole business of going to McDonald's as a treat and fun. "That makes children want to go to McDonald's. That leads them to attempt to persuade their parents to taken them to McDonald's. That means that when they go there McDonald's sells food and the franchisees and managers increase their turnover and increase their profit."

Yet there was resistance from Mr Green and Mr Hawkes to the notion that McDonald's hoped that children would successfully "pester" their parents to take them to McDonald's, although at one stage Mr Hawkes appeared to say that one reason why the Second Plaintiff did not advertise much to the "tweens" was because at that age they did not pester their parents.

Mr Kenneth Miles who was called on the Plaintiffs' behalf was equally resistant to the idea. He has been the Director General of The Incorporated Society of British Advertisers Ltd (ISBA) since 1979. ISBA is an industry association to which most leading companies belong.

Mr Green said that inducing children to nag or pester their parents to take them to McDonald's was not a principal function of McDonald's advertising to children. It happens; but McDonald's advertising, he said, wanted to establish a good relationship with the children and inform them of the things that go on at McDonald's and to make it a fun place, so that when a decision was made to go out and the parent asked the child, the decision would be to go to McDonald's. He accepted that McDonald's hope was that children would encourage their parents to go to McDonald's, but they did not have any advertisements which showed a child asking its parent to go to McDonald's.

Mr Green did not believe that McDonald's advertising put pressure on families with children to buy food at McDonald's, which they could not afford. He thought that McDonald's food was fairly priced and equally as affordable, if not more affordable than, almost any alternative.

Mr Green has two children, now pretty well grown up. They saw McDonald's advertisements. Once in a while they pestered him to take them to McDonald's. He did not always say 'yes'.

Mr Green and Mr Hawkes and Mr Miles would like to see McDonald's advertising, including its advertising to children, in a beneficial light. Some of McDonald's promotional material for children had an educational function, according to Mr Green. For instance there was a booklet on rainforest protection. It bore images of Ronald McDonald and McDonald's logos. Such material had a dual, promotional and educational function. It also had what Mr Green described as a "prosocial" aspect to it in communicating company standards which were important to customers, staff and stockholders. It was said that advertisements performed a valuable informative role concerning the different kinds of food and meals which were available and alternative sources of such foods and meals. Attractive food advertising might persuade children with eating difficulties to eat, it was said.

I cannot accept all this. The promotional motive must come well before any educational or "prosocial" or therapeutic message in an energetic , brand-name marketing concern like McDonald's, even supposing that it has a social conscience. The booklet showing concern for the rainforest was surely to combat the canard that McDonald's was responsible for its destruction. No one needs to know about McDonald's food products to have a choice about how to eat well.

Ms Dibb was not impressed by the argument that advertising encourages children with eating difficulties to eat. She said that if they have a real eating difficulty they need medical attention. The McDonald's experience can distract a child from eating, and it can make eating at home seem dull by comparison so that children find it harder to sit and eat at table. I agree with the former comment, but not the latter in circumstances where, for most children, eating at McDonald's must be an occasional treat, but they are often hungry.

Mr Miles thought that the object of advertising a fast food restaurant to a child who could not go to a restaurant to buy food on his own was so that the company would be liked by he child who had many years of being a customer ahead, but also so that when parents are deciding to go to one particular restaurant or another the child would be happy with the choice and there would be no difficulty about the food put in front of the child. I thought that this last point was rather unreal. Surely McDonald's hoped that its advertising to children would achieve more than that? I would have thought that most of McDonald's menu items would seem attractive to children as soon as they were put in front of them, without the need for any advance publicity. I have yet to meet a child who does not like chips ("fries"), and I would expect most children to like Coke and milkshakes and burgers with ketchup and pieces of chicken in a coating.

Mr Miles did not like the phrase "pester power" although he was familiar with it. He thought that children's requests of parents for this or that went on all the time, and it was a mistake to take the response to an advertised product in isolation from all the other requests which children made of their parents. This is no doubt so, but the child's response to advertising is prompted by someone outside the family, for its own profit.

Mr Miles did accept that the extent to which a parent objected to being pestered by a child to buy a product might depend upon whether the parent had the money to buy the product.

He said that provision was made in regulatory Codes to make sure that advertisers did not say to child audiences: "Ask your mother or father, or whoever, to do this for you". Mr Miles continued: "We do our best to make sure that is kept to a reasonable balance. We all know that children will behave in that way with or without advertising, but we want to make sure that advertisements do not make that worse ....... All children have the ability to wheedle their parents, often very successfully; they always did ... It is nothing to do with advertising per se. Advertising merely gives an additional opportunity for children to see things that they may like".

It was part of the Plaintiffs case that they abided by regulatory codes in respect of advertising, and that McDonald's had a "Golden Arches Code" of its own.

Television advertising in the U.K. was regulated by the IBA. It is now regulated by the ITC.

The IBA Guidelines provided: "Advertisements must not urge children to purchase or to ask their parents or others to make enquiries or purchases".

The ITC Code provides: "Direct Exhortation...... Advertisements must not exhort children to purchase or ask their parents or others to make enquiries or purchases". The word "exhort" is clearly used in the sense of "directly exhort". It is used in a different sense to that of the word "encourage" which is used in other contexts in the code.

Mr Miles said that the mere fact that a particular manufacturer or sales outlet advertised to children who obviously did not have money to buy the product themselves and therefore must go to their parents to ask for it, if they responded to an advertisement, would not put that advertiser in breach of the ITC Code or any guidelines.

The inference which I draw is that the IBA was, and the ITC is prepared to countenance advertising which has the effect of encouraging children to ask their parents to take them to McDonald's. But neither would countenance advertising which directly urges children to ask their parents to take them to McDonald's. In other words their attitude is the same as McDonald's. In my view this is a distinction without any real difference. The one may appear more distasteful than the other but the purpose and desired effect are the same.

Ms Dibb had no doubt about the value of "pester power".

In 1994 she attended a conference for people in advertising and marketing entitled "Pester Power: how to reach kids".

She thought that the ages of pester power were generally considered to be between seven and ten but children began to exert their wants and desires from a very early age. She said that research had shown that two thirds of children who asked their parents for advertised products were granted their requests. I found this difficult to accept unless most other families are different from my own. Her support for her statement was a survey of "Children's Views on Advertising" published by the Research Department of the Independent Broadcasting Authority in February,1986, which stated: "Two-thirds of those who had asked mummy or daddy to buy something said that it was bought. The youngest were more likely to have had a toy purchased, the older were more likely to have received a cereal".

I do not accept this as reliable support for Ms Dibb's statement and I am surprised that she should treat it as such. The respondents were children aged between four and thirteen. In my view, quite apart from any question as to the reliability of children's answers, they would be far more likely to remember a familiar toy which they had seen advertised and had asked for successfully than something, whether a toy or a meal, which they had requested but failed to get. Children have a happy ability to forget disappointments, especially small ones.

Ms Dibb introduced a Mori survey to support her view of the effect of pester power.

According to the survey which was commissioned by the National Food Alliance and published in July,1994, 64% of 633 parents with children under the age of fifteen agreed with the proposition that "there should be tougher restrictions on the advertising of foods and soft drinks to children". Mr Miles said that he believed this to mean that they thought that there should be tougher restrictions on advertising food and soft drinks to children than to adults. He said this because there were so few complaints about the advertising of food and soft drinks to children. That is not my interpretation. I would have expected it to mean "tougher restrictions than those already in existence". Presumably most if not all parents were ignorant of just what the restrictions were, but judged them to be lax from what they saw on television, for instance.

39% of the parents overall agreed and 52% disagreed with the proposition that they often ended up buying advertised foods or drinks which they would not otherwise buy, because their children asked them to. Not surprisingly the percentage varied according to the ages of the children. 25% of parents with children under five only agreed. 46% of parents with children aged between five and fourteen years of age agreed. 49% with children aged between five and ten agreed.

The survey was not directed at McDonald's.

Ms Dibb was the author of "Children: Advertisers' Dream, Nutrition Nightmare?", subtitled "The Care for More Responsibility in Food Advertising". It was published by the National Food Alliance in 1993.

In Advertiser's Dream Ms Dibb stated: "Market research campaigners recognise that children are a major influence on household food purchases, and that their influence is increasing."

The authority which Ms Dibb gave for the first part of this proposition that children are a major influence on household food purchases (Taylor Nelson Ray 1991), in fact stated that "children do, to some extent, influence and drive food consumption and the household" and that "children undoubtedly have an impact on food and drink consumed in the house, whether it be as a result of 'pester power' or by mothers exclusively determining what their children will consume".

The authority which Ms Dibb gave for the proposition that the influence of children was increasing, was a 1991 study into the eating habits of children aged six to eleven, by Leatherhead Food Research Association. The study does say in the summary that: "Children do have a major influence on the food items bought and, if anything, this influence appears to be increasing." However, the findings in the main body of the report showed that among the mothers questioned, "there was considerable debate about the influence exerted by children on the shopping trips." 13% thought that children had a great degree of influence, 33% a fair degree of influence, 46% a small degree of influence, and 6% no influence at all. The report concluded that: "Results from the quantitative research indicate that children do have an influence on their mother's shopping; however, in the main, the influence appears to be a moderate one."

It is true, as Ms Dibb pointed out, that the report was there dealing with shopping trips and not with "eating out", but one might have thought that children's influence was, if anything, greater when they were already at the point of purchase on a shopping trip, than if some suggestion about eating out or where to eat out was made at home.

A report by Mintel Marketing Intelligence published in 1991 purported to show that children were highly influenced by advertising and that they exerted influence over their parents' purchasing not just in respect of products exclusively for them including toys and clothes but also of products used by the whole family including groceries, peaking in the five to eleven age group.

I was invited to ignore any claim that Ms Dibb might be an independent expert so far as children's advertising including the influence of pester power, was concerned.

The cover of "Advertiser's Dream" shows a child with a wave of soft drinks, ice cream and a sweet going into one ear, and another wave of sweets, a packet of crisps, a bowl of cereal and a piece of cake going into one eye.

Ms Dibb preferred to describe the report as a discussion document to present a wide range of information in accessible form and to put forward the case for more responsibility in food advertising, rather than as a campaign document as was suggested to her.

In my view, "Advertiser's Dream" reads as a campaign document, and a number of the statements which it contains are not really supported by the references which it gives, but the thrust of Mr Dibb's view of the strength of pester power was confirmed by McDonald's own practice of advertising heavily to children and their statements on its commercial benefits and by the common sense of the situation.

A child in the younger Ronald McDonald group, up to about ten years of age, can only go to McDonald's if a paying parent or other older person takes the child. Indeed McDonald's does not encourage children up to the age of about ten to come into restaurants on their own, according to Mr Green.

The obvious reason for spending on advertising on children is that it is hoped that they will ask their parents to take them to McDonald's. McDonald's clearly think that children are a major influence.

"Premiums" in sets of four as four weekly promotions can only be meant to encourage children to ask parents to bring them back week after week.

Seeing things they like presented in an attractive way on television is likely to increase the prospect of children pestering their parents. McDonald's obviously appreciate this.

Brand Audit Research carried out for the Second Plaintiff reported that: "McDonald's is more likely to be chosen than its competitors in response to kids pestering, from a desire to treat the kids, or when one does not want to spend too much "

A schedule of multiple choice "Prompted Statements About Eating out at Restaurants" included reasons for attending McDonald's and three well known competitors. 55% gave "when kids pester me to go" as one of their reasons for going to McDonald's, a much higher figure than for any of the competitors.

The report was made in April,1992, but presumably the question was asked because the power of pestering was already well-known.

A report the following year has more than one reference to people going to McDonald's "because children pester me".

Of course McDonald's advertising could concentrate on trying to persuade parents or grandparents to take children to McDonald's, and some of its adult or cross-over time advertising does this. But the most obvious conclusion is that so much of McDonald's advertising and marketing concentrates on the children themselves because children are particular susceptible, although the Plaintiffs chose to dispute this.

The Defendants went further and argued that McDonald's took advantage of children's susceptibility, in order to deceive them. The Plaintiffs denied this.

Mr Green accepted that children and particularly very young children are impressionable: easier to impress than older people. But he thought that children were fairly sophisticated about what they liked and did not like and that the most impressionable, very young children looked at McDonald's and McDonald's advertising as entertainment and not much more than that. Although Mr Green said this in defence of McDonald's, it appeared to me to support Ms Dibb's argument that children did not realise that the point of advertising was to sell. Ms Dibb expressed the view that McDonald's advertisements sought to draw children into the McDonald's world which was portrayed as a very "fun place" to be and which was removed from McDonald's commercial purpose.

She relied on a 1987 article by Dr. Brian Young, then of the Department of Sociology and Anthropology of the University of Salford, to the effect that pre-school children simply regarded television advertising as there for fun. Between the ages of three and four they classified TV as commercial and the rest. By the age of seven the child was "aware that the intent of advertising is beyond simple entertainment". But "early primary school children do not see the commercial and persuasive functions of advertising as dominant" often regarding advertising as primarily informative, to 'tell you where things are'.

Dr Young also wrote that: "Extolling the virtues of brand characteristics that are not related to the product per se could be regarded as a different and more insidious form of advertising than extolling the virtues of, for example, the price, taste or texture of the product."

It is true that the sample of McDonald's TV advertisements for children, shown to me, concentrate on matters other than the edible product. Mr Green did not believe that money was ever shown in "McDonaldland" children's TV advertisements.

A report of a seminar held on January,1990, suggested that by then Dr Young considered that research did not show that advertising had a uniquely powerful effect on children compared to adults and that there were two widely held models of effect of advertising on children: the first that children were young innocents who believed advertising uncritically and acted upon it, and the second that they took a cynical view concerning advertising and display hostile attitudes to it when as young as eight years of age.

However, Ms Dibb did not accept the report as being necessarily accurate and certainly it could not have been a full report of Dr Young's views. The report has no evidential status of its own, therefore. Ms Dibb's view was that children have the facility to be strongly attracted by advertising without having the balancing facility to realise what may be adverse to their interest in the advertised product, and she called on authorities apart from Dr Young to support her views that they were particularly susceptible to TV advertising; that there was evidence that young children did not understand the purposes of advertisements; and that the fact that children might understand more about advertising and its purposes as they got older did not mean that advertising did not influence and persuade them.

She made reference to research that "the level of brand linked memorability for each 100 ratings was three times higher for children than for adults". Ms Dibb interpreted this to mean that children had been shown to be three times more responsive to advertising than adults.

In Advertisers' Dream Ms Dibb said: "Children's ability to understand advertising varies enormously according to age, with young children predictably the most impressionable. Zuckerman and Gianinno found that three-quarters of four year olds were unable to differentiate between programmes and adverts. Neither could over a third of seven year olds or one in five ten year olds.... Even by the age of ten only 15% of the children know that commercials intend to sell products....". I have to say that those figures surprised me, particularly so far as the older children were concerned. On examination of what Zuckerman and Gianinno in fact wrote it appears that although they found that 75% of four year olds, 38% of seven year olds and 20% of ten year olds were unable to specify a difference between programmes and commercials verbally , their understanding of commercials was better than their verbal responses alone would allow us to infer, and it was potentially misleading for researchers to infer from verbal responses alone what children did or did not perceive and understand about television programmes and commercials.

Furthermore, although it appears that when asked "what is a commercial ?" only three of the 20 ten year olds who were asked, i.e. 15%, spoke of an intent to sell, 60% said something like "an advertisement" or "like when they show you a toy or something" and the remaining 25% gave what the authors called an unclear response, but including "its on television". This is very far from a conclusion that only 15% of the ten year olds knew that commercials intended to sell products.

In my judgment the statements which I have quoted from Advertiser's Dream, allegedly based on Zuckerman and Gianinno are themselves misleading. Intentionally or otherwise, they misrepresent what Zuckerman and Gianinno in fact wrote.

Zuckerman and Gianinno's contribution appeared in a book to which Gaines and Esserman also contributed. Gaines and Esserman concluded from their study that "children as young as four years old can easily distinguish between television programmes and commercials, and recognise the selling intent of commercials and are even sceptical about commercials". 90% of four to five years olds and 100% of six to eight year olds correctly identified commercials as separate from the programme, and 63% of four to five year olds and 85% of six to eight year olds evidenced understanding of the purpose of a commercial, namely that it was to sell, to advertise things, to try to make you buy things or show things you can buy. Ms Dibb saw no need to refer to this point of view in Advertiser's Dream.

"In Advertiser's Dream Ms Dibb wrote: "It has been argued that as children become older they become more negative in their attitude towards advertising. However Rossiter points out that as children get older they may appear to develop an adult-like attitude against TV advertising as a social institution, but in fact commercials make them more acquisitive, rather that less." John Rossiter did, in 1981, write words to the effect that children's increasingly negative expressed attitude towards TV advertising did not mean much: they continued to be influenced by it; but in the same chapter of the same book, he wrote that: "Arguments against TV advertising based on charges of generalised deception and youthful gullibility are simply not supported by the evidence."

There are indications that the regulatory authorities are aware of children's susceptibility to television advertising.

Both the original IBA guidelines and the current ITC May, 1993, Code of Advertising Standards and Practice provide that "no method of advertising may be employed which takes advantage of the natural credulity and sense of loyalty of children."

The IBA guidelines went on to say: "Children's ability to distinguish between fact and fantasy will vary according to their age and individual personality." The ITC Code says that it "normally regards as children those aged fifteen years and under."

Despite what I see as the unreliability of the references which Ms Dibb took to support her views of children's susceptibility to advertising, I believe that it must be accepted as a fact of life in the sense that it is one's consistent experience that they are more susceptible. They find what is presented to them in an attractive light, on television in particular, less easy to resist and they accept it more on face value without asking what the "down side" might be.

In my view, however, as Ms Dibbs' own authorities show, children have more ability to spot a commercial than she allows, save for very young who have less ability to persuade parents anyway.

Is McDonald's children's advertising deceptive?

In my view some of the points which the Defendants made were stretched in the extreme.

Miss Juliet Gellatley to whose evidence I will return, expressed the view that the advertising of Chicken McNuggets as little characters resulted in young children positively thinking that they were not actual chicken. One child aged about seven, to whom she spoke, did not know where the actual food came from, when asked. She thought that the advertising positively encouraged the children to think of the product as non-animal based. However, Ms Gellatley agreed that children of that age could read "chicken McNuggets" on the menu, and they might well not think about where meat served at home came from.

The Defendants complained that one advertisement showed hamburgers coming from hamburger patches, but Mr Green did not think that children might be led to believe that they did so in fact. I share his view.

Mr Morris also suggested to Mr Hawkes that McDonald's was in breach of paragraph 3A of the ITC's code which provided that in any demonstration of a toy in an advertisement, the size of the toy "must be made easy to judge and it must be made clear whether the toy can move independently or only through manual operation." The advertisement which Mr Morris complained of showed a toy car moving of its own accord but no child's hand for scale or to propel it. I accept Mr Hawkes' evidence that the ITC thought that other objects in the advertisement showed scale and that there was an obvious winding up handle sticking out of the toy which showed why the toy could move independently. Mr Morris's complaint was that the toy could only move of its own accord if someone wound it up. I find this criticism totally unreal.

Ms Dibb said that vouchers as prizes at school sports or provided by teachers or dentists, obtained apparent endorsement by respected figures and that was misleading and deflected criticisms which might be raised from time to time.

I have already referred to the TV advertisements featuring Ronald and the Nutrients, and to the Michael Jordan and Olympic Hopefuls advertisements, and to Slugger showing off his biceps in praise of the meat group with its ability to make it easier to climb higher or ride a bike further, but I have difficulty accepting that children are drawn to McDonald's because they have been persuaded that its food will do them good rather than because they find it tasty and the visit a fun experience. In any event, I do not feel able to find that the advertising which I have just mentioned is an attempt to cover up the true quality of the Plaintiffs' food.

I do not, however, see all this as a deliberate attempt to deceive children about the quality of the food.

The Defendants argued that McDonald's spent a lot of money on advertising and other promotional activities in order to get over the difficulty of selling poor quality products. Mr Green said that young children were interested in the food they got at McDonald's and knew what to expect as well as toys.

It was put to Mr Green in cross-examination that the poorer the product the more the need to advertise to persuade people to eat it. Mr Green's answer was that advertising could not keep you in business for many years: your products had to be acceptable to your customers. I have already expressed my own view of the natural appeal of McDonald's food to most children, and I accept Mr Green's evidence on this point.

McDonald's 1989 Annual Report said that the corporation could ensure that millions of customers came through the doors again tomorrow "by delivering on the expectations that our advertising promises". I accept that although advertising can lead to a customer's first visit and can keep the advertiser in a customer's mind, it is hardly likely to sustain the success of a system like McDonald's unless it consistently supplies what the customer wants in terms of food and service.

The Defendants contended that the "normality trap" was a specific trap alleged to have been laid by McDonald's for children. Their case on this point depended largely on the evidence of Ms Juliet Gallatley. Ms Gellatley was Director of Youth Education of The Vegetarian Society from 1987 to 1993. During that time she gave about 500 school talks on vegetarianism to approximately 30,000 pupils between the ages of seven to eighteen, in the U.K. The school visits consisted of a talk and a debate. Sometimes a video was shown, before the debate, but only to teenagers.

The essence of Ms Gellatley's account of her experience was that a lot of the teenagers would talk about changing their diets by reducing meat consumption or by going vegetarian. One objection to doing so was that they could not then go to McDonald's. With some pupils that was their only objection to not eating meat. It would be hypocritical to be a vegetarian and go to McDonald's which was associated with the death of so many animals.

McDonald's was the only burger chain which was mentioned. They had known McDonald's since they were tiny. McDonald's was part of their lives. Those under about sixteen met their friends there and they could not imagine being the odd one out, who would not go there any more. Sixteen to eighteen year olds were not worried by this. They were much more individual.

The teenagers said that McDonald's was seen as the place to go because of the T.V. advertising. It was "hype" but they followed the "hype": they followed the fashions dictated by advertising.

The seven to ten years olds saw Ronald McDonald as a good, positive force which would not make them eat anything detrimental to their health. They mentioned the gifts which they received at McDonald's and McDonald's items given out at their doctors' and dentists' surgeries. They did not see this as a practice directed at selling. They talked openly of mithering (pestering) their mothers and fathers to take them to McDonald's.

Counsel for the Plaintiffs challenged Ms Gellatley's motives, and by inference the accuracy of her recollection in relation to school debates, by showing the video "Food Without Fear", which she used in her presentations to older children right up to the time when she left the Vegetarian Society in November, 1993. The video showed a number of cruel practices relating to animals. Although Ms Gellatley denied it, the video clearly sought to associate McDonald's with those practices by referring to a Big Mac and McNuggets which are of course names of McDonald's products. It did refer expressly to one other fast food outlet. In my view, the video was clearly designed to put any school child who saw it off eating meat if possible, and by necessary implication off going to McDonald's.

Ms Gellatley demonstrated a clear antipathy to McDonald's when giving her evidence and particularly when being cross-examined about the video. Her real complaint, although she did not put it in so many words, was that McDonald's advertising and promotions were objectionable because they made McDonald's appear normal, as if there was nothing wrong with McDonald's, whereas she thought that there was a lot wrong with McDonald's, particularly because they were involved in killing millions of animals "and all the environmental devastation that goes with that" and because their food was "junk food."

I think that Ms Gallatley's antipathy to McDonald's must have come through to her youthful audiences, underlined by the video's references to McDonald's products when it was shown to school children.

However, I accept that her school visits gave Ms Gellatley considerable experience of children's reactions to food advertising among other matters, and after some reflection, and observing her demeanour when giving her account of what was said during school discussions, I accept her evidence that a number of school children under sixteen told her that they did not want to be left out by not going to McDonald's. That accords with what surely must be general knowledge: that a lot of young people like going to McDonald's and that young people do not want to left out of group activities.

I do not, however, think that this state of affairs is a trap purposely set by McDonald's as opposed to the inevitable consequence of its popularity which has been encouraged by its advertising and marketing to young people.

Ms Dibb suggested that McDonald's use of "collectibles" in sets of four also played on children's wishes to be normal in the sense of being the same as their friends if those friends had started to collect McDonald's Happy Meal premiums. There may be an element of that, but I would have thought that the use of premiums played on the normal child's desire to collect full sets of anything.

In my view, having considered the evidence, the answers to the questions which I posed earlier are as follows.

McDonald's thinks that children's advertising and marketing is very important. A considerable amount of its advertising and marketing is, as a result, directed at children.

McDonald's advertising and marketing is not directed at children specifically to trap them into thinking that they are not normal if they do not go to McDonald's. It is simply designed to make McDonald's attractive so that they will want to go there.

McDonald's advertising and marketing is in large part directed at children with a view to them pressuring or pestering their parents to take them to McDonald's and thereby to take their own custom to McDonald's.

This is made easier by children's greater susceptibility to advertising, which is largely why McDonald's advertises to them quite so much.

The Plaintiffs use gimmicks, but not to cover up the true quality of their food. The gimmicks are aimed at making the experience of their visiting McDonald's seem fun, but McDonald's food is just what a child would see it and expect it to be: beef burgers in buns or chicken in a coating, for instance, soft drinks, milk shakes and "best bits" of all , I suspect, chips or fries. No cover up could last long. No cover up is necessary anyway.

It follows that in my judgment the defamatory charge that the Plaintiffs use gimmicks to cover up the true quality of their food is not justified, but the sting of the leaflet to the effect that the Plaintiffs exploit children by using them, as more susceptible subjects of advertising, to pressurise their parents into going to McDonald's is justified. It is true.

In my judgment McDonald's advertising and marketing makes considerable use of susceptible young children to bring in custom, both their own and that of their parents who must accompany them, by pestering their parents. It may be said that this is an inevitable result of advertising at all to children who cannot buy for themselves. So be it. McDonald's have, after all complained about the allegation. As I have already said, I will return to the question of whether the Plaintiffs promote the consumption of meals at McDonald's as a fun event when they know full well that the contents could poison the children who eat them, when I come to the question of food poisoning.

[ previous page ] [ next page ]