AS ONE of the longest running libel trials of the century resumed in the High Court in London last week, the topic was litter. A young manager from McDonald's King's Road restaurant gave evidence about the ratio of eat-in versus take-away orders, the number of bin-liners of rubbish collected by his staff in the course of their half-hourly "trashwalks" and revealed that the average take-away customer leaves with seven pieces of potential litter: a bag, napkin, straw, drinks cup, drinks lid, paper "fry carton" and styrofoam "clam shell" in which hamburgers are packed.
Detailing his efforts to control what Richard Rampton QC, one of the country's most experienced and expensive libel barristers, called the "ingrained British habit of littering", the manager admitted: "There are times when we can't deal with the sheer volume."
At the back of the courtroom sat Mike Love, McDonald's UK head of communications and formerly Margaret Thatcher's full-time Conservative Party agent in Finchley (home to McDonald's British headquarters). Love was reading the latest bulletins from the McLibel Support Campaign, being distributed outside the court. Was he ruing McDonald's decision to sue Helen Steel and Dave Morris, two unwaged radical environmental activists accused of distributing a leaflet allegedly libelling the $ 24 billion-a-year fast-food giant? If the object was to keep the material off the streets, the legal action had clearly failed already.
Before the trial opened last June, Rampton forecast it would last three to four weeks. Before the Christmas break, 29 witnesses had been grilled. Another 150 are scheduled to appear. The hearings are now unlikely to conclude before December.
The origins of the case go back to the mid-eighties, when activists in a small group called London Greenpeace (which has no links with Greeenpeace International) produced a McDonald's "Factsheet" accusing the company of damaging the environment, promoting an unhealthy diet, being cruel to animals, exploiting children through advertising and workers through low pay, and hostility to trade unions.
McDonald's sent private investigators into London Greenpeace meetings and in September 1990 served libel writs on five individuals connected with the group. Advised that there was no legal aid available to fight libel actions and that they stood little chance of even getting to trial, three of the five apologised to the burger chain. Steel and Morris refused and resolved to fight the case themselves.
Their attempt to get the European Court of Human Rights to order the British government to grant them legal aid was unsuccessful. They then embarked on another year of pre-trial hearings. Justice Bell ruled in favour of McDonald's application that the link between diet and cancer was "too complex" to be assessed by a jury. The Court of Appeal refused to reverse the decision and the Lords denied Steel and Morris further leave to appeal.
"The case has completely dominated our lives for over two years," says Morris, a 41-year-old former post office worker and single parent with a five-year-old child. Steel, 29, a former gardener who had to abandon her new home in Yorkshire to return to London for the trial, agrees: "It's been a long ordeal. We've had no time for anything else.
"During a hearing in 1991, we asked a judge to explain the procedure to us. We were told that if we didn't know we ought to get a solicitor. But without legal aid, that was impossible. We've received vital help from volunteer lawyers, some organised by Liberty, but in the end we have to get up before the judge and do it ourselves." That has meant mastering court procedures, legal jargon and a welter of scientific and technical detail, as well as 30,000 pages of trial documents.
Without mortgages or careers, the two have little to lose - that undoubtedly has been one of their secret weapons - but should judgment go against them they face bankruptcy and an indefinite clamp on any future income. Defence costs, restricted to faxes, photocopying and air fares for witnesses from abroad, have been entirely met by donations from the public. McDonald's legal expenses are estimated at more than £5,000 a day. By the end of the trial, the company could find itself out of pocket by £2 million.
Since June, a procession of sober-suited McDonald's executives from both sides of the Atlantic have taken the stand in the High Court. For many, it has clearly been a trying experience. "They can't walk away from the witness box the way they've walked away when confronted by critics in the past," Steel observes. "They have to come up with answers to our questions."
AUBERON WAUGH has called the trial "the best free entertainment in London". The contrasting styles and ideologies of plaintiff and defendant have certainly made for some bizarre exchanges. At one point Morris was reprimanded for referring to his co-defendant and one of the plaintiff's solicitors by their first names. "He'll be calling me Dickie next," an exasperated Rampton observed. Nonetheless, the issues raised by the trial - not least the use of British libel laws against critics by a giant multinational company - are serious and will resonate long after Mr Justice Bell gives his final judgment.
During the first six months, the trial has covered an astonishing variety of topics, from the living conditions of chickens, pigs and cattle raised for McDonald's to the effects of styrene in its packaging, from industrial relations to child psychology. The latter cropped up in the course of testimony regarding McDonald's alleged use of "pester power" - advertising and promotional gimmicks aimed at getting children to nag their parents into taking them to a McDonald's.
In this argument, the familiar figure of Ronald McDonald appeared alternately benign and sinister. Paul Preston, president of McDonald's UK, said the clown was intended not to "sell food" but to promote "the McDonald's experience". The defendants quoted a statement issued by the actor who had originally played Ronald McDonald: "I brainwashed youngsters into doing wrong. I want to say sorry to children everywhere for selling out to concerns who make millions by murdering animals."
McDonald's has taken particular umbrage at what it sees as damaging attempts to undermine its carefully-promoted environment-friendly image. Preston insisted that if one million customers each brought a soft drink (and McDonald's serves about one million customers a day in Britain), he would not expect more than 100-150 cups to end up as litter. He was then shown photographs of 27 items of McDonald's litter on a stretch of pavement at a single store.
Before Christmas, Edward Oakley, McDonald's UK chief purchasing officer and senior vice-president, was asked about a "recycling" project in Nottingham (publicised in one of the company's nationally distributed "McFact" cards) in which customers were asked to put polystyrene packaging in a special bin. Oakley admitted that in the end the waste collected in the bin had been dumped, not recycled. Currently, with the exception of a pilot scheme in five Manchester stores, all the company's post-consumer waste ends up as litter on the streets or in landfill.
Over the years, McDonald's has threatened legal action against a number of bodies which have suggested it may be responsible for rainforest destruction. However, testimony at the trial revealed that Brazilian beef was imported to Britain for McDonald's use in 1983-84 and that its outlets in Costa Rica have used beef raised on ex-rainforest land. In a filmed interview screened in court, a McDonald's supplier in Costa Rica stated that this beef had also been exported to American fast-food chains like McDonald's.
The most detailed testimony - and most heated exchanges - have concerned McDonald's claim (contained in the "Nutritional Guide" available in all outlets) that "every time you eat at McDonald's you'll eat good, nutritious food". Its executives explained that "nutritious" simply meant that the food "contained nutrients". Under cross-examination, they accepted that all foods contain nutrients (though there was some debate about black tea).
Asked to define "junk food", Vernon Wheelock, an expert witness for McDonald's, said it was "whatever a person doesn't like" (in his case, semolina). Rampton then pointed out that McDonald's was not objecting to the description of its product as "junk food".
When the defendants suggested to purchasing officer Oakley that the company might switch from deep-frying to oven-baking its fruit pies, out of "concern for your customers' health", he replied: "We do not see it as a concern." "You do not see reducing fat content as a concern?" Steel asked. "No. Why should we?"
Steven Gardner, a former assistant attorney-general in Texas, told the court that in the mid-eighties his office had grappled with McDonald's over food labelling and advertising guidelines. Ultimately, Texas (with two other states) ordered the company to "cease and desist" further use of ads which portrayed McDonald's food as nutritious. "McDonald's food is, as a whole, not nutritious. The intent and result of the current campaign is to deceive customers into believing the opposite."
The defendants asked Dr Sidney Arnott, McDonald's expert witness on cancer if it was "reasonable" to say that "a diet high in fat, sugar, animal products and salt and low in fibre, vitamins and minerals is linked with cancer of the breast and bowel and heart disease". Arnott replied: "If it is being directed to the public, then I would say it is a very reasonable thing to say. But if it is directed towards the scientific community, then I think one would be a bit more careful in the language which one is using." Morris then pointed out: "That is actually a quote from the London Greenpeace Factsheet which is the subject of the libel action."
IN THE pre-trial hearings, Rampton had characterised that quote as the most "defamatory" of the allegations in the "Factsheet" and said that if proven it would be the "kiss of death" for a fast -food company. The supposed scientific complexities of this issue had been one of the main reasons for denying Morris and Steel a jury. Now, however, Rampton told the court: "We would all agree" that there is a link between a high-fat, low -fibre diet and certain forms of cancer. McDonald's has since amended its original 1990 statement of claim (the basis for the court action) so that it is now asking the defendants to prove that "McDonald's sells meals which cause cancer in their customers", an allegation that does not appear directly in the offending "Factsheet".
Over the next few months, testimony will concentrate on packaging and litter, hygiene and animal welfare. Sometime in March, the focus will move to employment practices. The defendants plan to call 30 former McDonald's workers as witnesses, including two from Lyons, where five McDonald's managers have been charged with violating French labour laws.
Observers are beginning to wonder whether McDonald's has miscalculated in pursuing Morris and Steel this far. After all, the company has no hope of ever recovering costs or damages from the penurious defendants and, in the course of the trial, the allegedly libellous allegations have been given far more exposure than London Greenpeace could have hoped for when it printed the offending leaflet a decade ago.
"They have no choice but to see it through to the end," Morris says. "In the past they've used the threat of libel action to intimidate critics. If they back down against us, that threat is exposed as a paper tiger."
McDonald's plans to expand its 580 British restaurants to more than l,000 within the next 10 years (including in hospitals and schools). It has 14,000 outlets in 70 countries. After Coca-Cola it is the most widely recognised brand name in the world - and it spends a billion dollars a year on advertising and promotion to keep it that way. It may seem like McDonald's is using a legal sledgehammer to crack the McLibel nut, but it is aware that its high global profile is giving rise to global protest and the McLibel action may be an attempt to stop the rot.
In recent months there have been anti-McDonald's demonstrations from Australia to the Philippines, from Ireland to the Czech Republic. On October 16, UN World Food Day, Ronald McDonald was put in the stocks outside the biggest McDonald's in Wellington, Now Zealand. Unrelated to the McLibel case, 400 rioting youths in Copenhagen ransacked a McDonald's on New Year's Day, heaping its furniture on a bonfire in the street. According to the AP report of the incident, the youths were angry because McDonald's "symbolises capitalism and money".
In Britain, the McLibel Support Campaign has launched "Operation Send it Back", urging people to collect McDonald's refuse from the streets and return it in sacks to local restaurants on April 15 - the company's 40th anniversary, which the campaign has declared an "international day of action". "Thousands of people have pledged to continue to hand out leaflets critical of McDonald's," Morris says. "No matter what happens to us, these leaflets will circulate in even greater numbers than before. The whole McDonald's effort has been about silencing critics and campaigners - and they have failed."