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Currently a member of the faculty of the School of Law, Southern Methodist University, Dallas, Texas; Stephen Gardner maintains a limited private practice of law. From November 1984 until December 1991, he was the Assistant Attorney General in charge of the Dallas Regional Office of the Texas Attorney General's Office. I operated almost exclusively within the Consumer Protection Division of that Office. As Assistant Attorney General, he had the dubious experience of investigating McDonalds Corporation for various violations of the Texas Deceptive Trade Practices Act, as part of his responsibilities and duties as an Assistant Attorney General for the State of Texas. Stephen Gardner was interviewed in 1997 by One-Off Productions for their TV documentary, McLibel: Two Worlds Collide.
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McDonald's decided for whatever reason that it would try to steal the march on it and one day before [the major release] McDonald's put out its own release stating that it was providing this type of information to people, in what I think was a clear attempt to steal the credit for doing so. Not to steal it from us but really, I think, to steal it from their competitors so it would like they were setting the gold standard when in fact their motives were more base.
as we said to them in the letters, .... McDonald's food overall is simply not nutritious.
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For McDonald's to call their food nutritious is deceptive because as we said to them in the letters, .... McDonald's food overall is simply not nutritious. McDonald's experts and McDonald's lawyers interpret nutritious to mean containing nutrients and almost every food contains a nutrient, I think the best McDonald's could come up with was black coffee as having no nutrients, although I think you could probably make an argument for caffeine. I think that's a facile argument and one that didn't suffice then and it doesn't suffice now. The public people, the people to whom these ads are aimed believe that nutritious means basically good for you, healthy, not deleterious to your health, and McDonald's food is, for whatever positive attributes it may have, it isn't healthy, it is in fact unhealthy and bad for many people, although it's got too much fat and too much sodium, and, we didn't mind them promoting their foods, we weren't trying to stop them from selling their foods, our concern was simply that they would be selling it under a false pretext, that they would be telling people "Don't worry about eating at McDonald's because you're really eating healthy food." |
| An old spring court justice said "A half truth is a whole lie" and that's always been my operating procedure, if you try to shade the truth you are lying, it is a fairly right line standard. And I do believe that for McDonald's to call its food nutritious is a lie to the public, whether the British public or the American public. Studies have shown that American consumers, and I wont attempt to speak for British consumers, but American consumers eat at fast food restaurants a lot. One of the reasons for it is [that] kids are drawn to it by all the little toys they give away with the food, another reason is that with two worker families, we just don't always have time to prepare meals, so people do go to McDonald's and other fast food restaurants a lot.
McDonald's is not by any means the only fast food restaurant whose overall menu selection is non nutritious, it is in fact unhealthy, so the fact that people are going to a significant degree to fast food restaurants is a health problem, people should, to the extent possible rely on other sources for meals other than McDonald's or other fast food restaurants. However, sometimes, and I'm not going to tell people how to make choices, that's never been my job, it was, it isn't now that I'm a lawyer, private practising, it wasn't my job when I worked for the State Attorney General. |
An old spring court justice said "A half truth is a whole lie"..... And I do believe that for McDonald's to call its food nutritious is a lie to the public
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Our only concern was that people who are going, get the truth about what they're buying, that they not be misled or have their concerns about the unhealthiness of these products swayed by false and deceptive advertising, that hurts a lot; but we were looking at it from an advertising standpoint, we were focusing on health issues, there were any number of other cases in the mid to late 1980s when this occurred, the State AAGs Attorney General were working on dealing with deceptive claims involving healthy or health-related attributes of foods. There was a huge increase in, a wide variety of advertising claims of that nature, this was just one of them.
the entire ad campaign, not one little claim and one little ad but a whole campaign was intrinsically deceptive..... there's no question this is one designed, executed campaign.
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Because the point was the entire ad campaign, not one little claim and one little ad but a whole campaign was intrinsically deceptive. And that is not typical, generally, the law is that you look at one ad to see whether or not it's overall deceptive, you can look at specific misstatements, falsehoods, whatever, in the advertisement and make a decision that because of even one misrepresentation the ad is illegal, is deceptive or is false, or you can look at the overall impression left by the advertisement. What we did that was fairly unique, was to look at what they were doing which was to create a campaign with one ad after another reinforcing the same idea. So the main point we wanted to make with McDonald's was that their advertising as a whole, this one campaign was deceptive, and it was clearly one campaign, they had one booklet made up of all the ads, they printed them all up, there's no question this is one designed, executed campaign. There's also no question that it stopped, and, you know, whether we stopped them or they just stopped I don't really care to be honest, our concern was just that they stop. |
You were getting all the sodium and often all the fat and then some, you should get for the entire day in one item, and while it is I'm a big fan of hamburgers, and while you can eat them, you have to balance it out if you intend to eat healthy, you have to balance it out with other things. That was one of McDonald's big arguments, that they never claimed that these were great healthy items, but that it could be consumed as part of a balanced menu I don't think that's true because the fat and the sodium in McDonald's products creates such an imbalance that you really can't have a balanced diet of you regularly consume fast food products, fast food hamburgers or fries, whatever.
McDonald's created this campaign to intentionally deceive people into believing that the food was better than they thought it was
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Well one of the things I've always avoided was trying to guess what people should be doing and, only to make the information available, it's a very market-driven activism on my part, is, I want to make people aware of what they're eating, and I do believe that McDonald's created this campaign to intentionally deceive people into believing that the food was better than they thought it was, they're trying to correct falsely a correct impression, they weren't trying to fix a misimpression that people had, and that's often necessary I've seen advertisements that do that, people think a product is bad and it really isn't they were trying to create a misimpression to counteract people's accurate knowledge about the nutritiousness of the product. |
....to get people to buy your product by deceiving them is as bad and as wrong and it is as much theft as holding someone up at the point of a gun.
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Yes, I feel strongly that, not speaking specifically as to McDonald's, but to get people to buy your product by deceiving them is as bad and as wrong and it is as much theft as holding someone up at the point of a gun. It's just done through the stroke of a pen rather than the point of a gun, it's just as bad and in fact national advertising deception steals more money from people annually that any bank robber ever does. Certainly if you catch a bank robber, the bank robber doesn't get to say "Here, I wont do it again can I leave now?"; as a general rule it is appropriate I think to sanction the wrong-doer, and we historically were very aggressive in getting these. In this particular one because of the nature of it I can't recall, because it was a multi-state effort, working with other state jurisdictions in those cases we sometimes did not push forward if we were able to resolve it quickly as we relatively were with McDonald's to get either attorney's fees or costs, or civil penalties, we don't have criminal sanctions, I wish we did. All we had were civil sanctions we could have hit them with a penalty, not much. |
A good example, several years back with other State Attorney's General, we took an action against Nestle Carnation for a new infant formula, I can't remember the name to be honest, but what they had said about it was that it was hypo-allergenic. I thought hypo-allergenic meant non-allergenic, it merely means, and any scientist can tell you this, less allergenic, that it's less likely to cause an allergic reaction. However, our Food and Drug Administration had studies showing that people in fact believe that hypo-allergenic means non-allergenic, and we were able to persuade Carnation, for it was called Good Start for for their Good Start infant formula to stop calling it hypo-allergenic.
I don't know whether or not they intended to deceive through using that statement, because as I said it was quite literally true, but I do know that they did deceive people by emphasising how hypo-allergenic it was. Similarly with nutritiousness you could probably find some dietitian who will say nutritious means containing nutrients, but no market researcher who researches consumer perceptions will say so without first having to fix her face because she's fixing to tell a lie. It doesn't mean that, it means to be healthy, to the average consumer.
Most advertising is built on a half truth or a deception of one kind or another but most of it is sufficiently low-key that it doesn't rise to the level of being illegal under state or federal false advertising laws.
You know, if I watch any television commercials for beer I would believe that if I would drink their beer there'd be all these young beautiful girls running around there, there is a subliminal message there, it's not true, but it's also not sufficiently deceptive enough to make it illegal, but yes, I mean, a lot of advertising does create a belief other than reality, where they step over the line is where it gets into something substantive. The states chose to focus our efforts in the mid to late eighties with some activity still continuing, on health-related claims, cos we wanted to look at not just what was deceptive, but what was deceptive in an area that could actually cause you harm.
If you eat unhealthy foods rather than healthy foods, if you eat a cereal containing high bran content because you believe it will reduce your cholesterol significantly when in fact none of them will, and therefore if you forgo having taken the actual steps if you have high cholesterol to reduce your cholesterol in your blood. A number of things we looked at, a number of national companies that we took actions against were focusing on that area, trying to make you believe something about their product was healthy or good for you when it just wasn't true.
McDonald's is making a high quality unhealthy product, it's not a poor product it's just one that isn't good for you.
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No, they, their products are not poor quality as far as I know, they've got the beef as good as can be the vegetables, the ketchup, the buns are all top quality products. , and as I say, people can choose to do that, and I don't think anybody ought to be stopping them buying them if they want to, the only concern that I have is that they not be buying it thinking it's something it isn't. |
In America, the libel law burden is on the company to prove that the statement made was false and that it caused harm. I don't think that McDonald's could ever prove that any of these statements are false. The only statement that I'm familiar is they McDonald's ware mad because Dave and Helen and the others put out a brochure that said McDonald's food was not nutritious.
Well, McDonald's is calling that statement libellous. On the other hand the states of I think it was just California and Texas, had found the exact opposite statement by McDonald's to be deceptive, in other words, we had determined that for McDonald's to say that that it's foods were nutritious was deceptive, very far from the truth, so it is an interesting thing to watch as two people are subjected to this, in my opinion, abuse, maybe legal abuse, but never the less abuse, of the libel laws.
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The reason this case could not have gotten anywhere close to this far in America is our first amendment to our constitution which says the congress, and that's extended to mean the states, everyone else, may make no law restricting freedom of speech, or the press, or of religion. What Helen and Dave did was absolutely protected by our free speech laws. Libel is an exception to free speech laws and it has been developed in the this century to be very restrictive as to what and who can sue for libel. In this instance because McDonald's is by it's own choice a national figure, it would have to prove not just falsity of the statements, but intent to do harm, you know, malice towards McDonald's by Helen and Dave, and, I've never seen anything in talking with them or watching what they did that indicated a malice towards McDonald's, it's kind of like my father always said to me when I did something wrong, you know, "I'm not mad, I'm just disappointed." you know, it is whether it's awful here or not, I don't know, but for McDonald's, which is an American corporation and which has enjoyed the freedoms that corporations in America get, for McDonald's to come here to sue these two individuals for libel is repugnant to me. It's also nutty, it's short-sighted and ill-advised for McDonald's to have done this because if they had waited a moment and thought about what they were doing they would have known that suing these folks was going to engender more publicity and not less. What McDonald's has done is to take Helen and Dave leafleting on a street in London to the national and the international stage it was a, I've seen decisions by corporations before, it's often ego-driven decisions at the board level, but what McDonald's has done is to waste hundreds or thousands or millions of dollars in this law suit, it's never going to get money out of it so it's just wasting it's shareholders money the people who own McDonald's are not the board members, it's the shareholders, so it's wasting their money, and it's in fact hurting McDonald's. |
What Helen and Dave did was absolutely protected by our [American] free speech laws..... for McDonald's to come here to sue these two individuals for libel is repugnant to me. It's also nutty, it's short-sighted and ill-advised for McDonald's to have done this because if they had waited a moment and thought about what they were doing they would have known that suing these folks was going to engender more publicity and not less...... they shot themselves in the foot.
I have read the press accounts that have appeared here on the case and from what I can tell everyone in England knows about this case and thinks it's odd so McDonald's did not benefit any from this law suit. In fact, I think they caused themselves harm, they shot themselves in the foot. |
Well, I really don't know, [but] our experience in dealing with them was always adversary but positive in nature, they expressed a desire to work with us, they were co-operative, you know, they were co-operative and yet, then they would jump the gun on releasing the story, not to steal credit from the states, I don't really care about that, but I do believe they did it to steal credit for them as opposed to the other fast food chains that had done the same thing. So I have a hard time aligning my experience dealing with McDonald's with the actions by McDonald's, it's somewhat anomalous to me.
....you couldn't ask for a better bully to step in than McDonald's, because they are in fact a big multinational household name which is why they should be above this kind of behaviour. At best it's very unsporting, at worst, it's really stupid
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Well I can't really get into the iconic aspect of it. I never thought about it, I think you're correct, but I never really thought about it not necessarily from the standpoint of the trial itself but from the standpoint of someone observing it, you couldn't ask for a better bully to step in than McDonald's, because they are in fact a big multinational household name which is why they should be above this kind of behaviour, it's why they shouldn't be engaging in it. At best it's very unsporting, at worst, it's really stupid because they have bought themselves, as I said, a whole lot of bad press and they have surely through lack of foresight transformed a local action, the leafleting into an international action. They have really let themselves be thrown into the briar patch. |
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Yeah, it'd be a but cheeky. Truthfully should they be changed? Absolutely. Well,
I do think that what libel laws in England permit McDonald's to do, and I don't think there's any
question that they do permit this, I think Mr Justice Bell has been very fair in his rulings, I don't have any reason to question him for having bias, I think he's doing what he believes he has to do under the law. And I think that shows that in a modern society we ought to be able to have open dialogue in a commercial context especially and it's a bit cheeky of me but I would be
happy to see this experience with this case serve as a springboard for revising the libel laws in England. People ought to be able to speak out on matters of public importance, people ought to be able to criticise corporations. We're not talking about somebody bad mouthing a neighbour or slandering a friend, we're talking about somebody speaking about a nonentity, not people but a national, multinational corporation on issues of utmost public importance and if people can't do that without fearing that what they say will end them up a victim, a defendant in court, then people here are not going to have the same freedom of choice as people in America do because you wont be able to get the pros and the cons, you are stuck with whatever lies any advertiser chooses to put on the television and put out into the magazines and the newspapers with nothing to counteract that.
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People ought to be able to speak out on matters of public import, people ought to be able to criticise corporations..... if people can't do that without fearing that what they say will end them up a victim, .... then people here are not going to have the same freedom of choice as people in America, because you wont be able to get the pros and the cons, you are stuck with whatever lies any advertiser chooses to put on the television and into the magazines and the newspapers with nothing to counteract that.
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