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experience:
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Assistant Attorney
General, Texas - Nov 1984 - Dec 1991
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summary:
We investigated McDonald's for a series of advertisements that promoted
McDonald's food as nutritious. From an analysis of the content of McDonald's
food as a whole, it was determined that McDonald's food was, as a whole,
not nutritious.
We've made it clear
to McDonald's that the advertisements were deceptive and illegal both as
a whole and in certain specifics.
cv:
I am currently a member of the faculty of the School of Law, Southern Methodist
University, Dallas, Texas. I also maintain a limited private practice of
law.
From November 1984 until December 1991, I 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.
Full cv:
(not available for this witness)
full statement:
AFFIDAVIT OF STEPHEN GARDNER
County of Dallas
State of Texas
United States of America
BEFORE ME THE UNDERSIGNED NOTARY PUBLIC on this day personally appeared
Stephen Gardner, known to me to be the person whose name is hereunder subscribed,
who being by me first duly sworn, on his oath deposed and said as follows:
1. My name is Stephen Gardner. I am qualified in all respects to make this
affidavit. All of the facts stated herein are within my personal knowledge
and are true and correct.
2. The purpose of this affidavit is to detail my experiences in investigating
McDonalds Corporation (herein, "McDonald's") for various violations
of the Texas Deceptive Trade Practices Act, as part of my responsibilities
and duties as an Assistant Attorney General for the State of Texas. I
have neither been promised nor have I received any compensation for giving
this affidavit, nor would I accept such if offered. This affidavit supplements and replaces the affidavit I have
previously written in this matter .
3. I am currently a member of the faculty of the School of Law, Southern
Methodist University, Dallas, Texas. I also maintain a limited private practice
of law.
From November 1984 until December 1991, 1 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.
4. The primary statutory responsibility of that Division is to enforce the
Texas Deceptive Trade Practices Act. The Texas Deceptive Trade Practices
Act provides for private enforcement through individual litigation and for
public enforcement by the Division. The underlying purposes of the Texas
Deceptive Trade Practices Act are "to protect consumers against false,
misleading, and deceptive business practices, unconscionable actions, and
breaches of warranty and to provide efficient and economical procedures
to secure such protection." Texas Deceptive Trade Practices Act Section
17.44.
5. Within that overall framework, the Consumer Protection Division has the
duty and specific authority to bring a lawsuit whenever it has reason to
believe that a company is engaging in, or is about to engage in any act
or practice declared to be unlawful by the Texas Deceptive Trade Practices
Act, if it believes that legal proceedings would be in the public interest.
Texas Deceptive Trade Practices Act Section 17.47(a).
6. The offices of the Attorneys General of California and New York operate
pursuant to statutes that place essentially the same duties and responsibilities
on those offices. I have familiarity with the functioning of the office
of the Attorney General of California because I have worked on numerous
occasions with that office on law enforcement matters. I have familiarity
with the functioning of the office of the Attorney General of New York for
that same reason, and because from 1982 to 1984 served as an Assistant Attorney
General in the Bureau of Consumer Frauds of that office.
7. It was in this context that, in 1986, I first investigated the marketing
practices of McDonald's as part of my official duties, together with my
counterpart in the office of the Attorney General of California. To my knowledge,
the Attorney General of New York was at the same time conducting a parallel
investigation which was coordinated with our investigation.
8. The 1986 investigation was a part of an industry-wide investigation of
the fast food industry for its failure to disclose ingredient and nutritional
information about fast foods. Many Americans - two-worker households in
particular- are forced by circumstance to go to fast food outlets as one
of their primary sources of meals. Americans are concerned about the ingredient
and nutrition content of the foods they eat, and have repeatedly expressed
a desire to obtain more information about those foods. Fast food meals tend
to contain high amounts of the very things that health professionals counsel
against in the diet - fat and sodium in particular.
The Attorneys General had discovered that fast food restaurants
did not make the ingredient or nutrition content of their foods available
to the public. We believed that this failure to disclose ingredient or nutrition
in some manner probably violated our state consumer protection and food
labeling laws.
9. Therefore, we embarked on a series of meetings with the major fast food
chains, McDonald's among them. On May 6, 1986, we wrote McDonald's a letter
advising it of our concerns and requesting a meeting with McDonald's. A
copy of this letter is attached hereto as Exhibit 1 and is incorporated
fully herein by this reference. McDonald's accepted our invitation and a
meeting was held. Although no fast food chain was initiaily willing to label
its foods properly or otherwise to disclose the ingredient and nutrition
content of its foods, we were able through cooperative discussions to arrive
at a solution - disclosure of ingredient and nutrition information in a
booklet, poster, or other such medium rather than disclosure on the labeling
of each individual item. This compromise permitted the fast food chains
more flexibility in the design and use of their packaging materials.
Although we continued to believe that ingredient and nutrition
information was best delivered on the label of the product, we agreed to
accept the use of brochures and other media as minimally complying with
our state laws. Accordingly, we wrote to McDonald's on June 3, 1986. A copy
of this letter is attached hereto as Exhibit 2 and is incorporated fully
herein by this reference. At the time the June 3 letter was sent, McDonald's
had not agreed to make ingredient and nutrition information available to
consumers through any mechanism. McDonald's choice at this point was to
comply with our state laws in this manner or to be sued for violations of
those laws.
10. It is to me beyond argument that our discussions with McDonald's were
responsible for forcing McDonald's to begin providing booklets containing
ingredient and nutrition information in all of its stores.
However, impelled by an apparent desire to fool the public into
believing that disclosure of ingredient and nutrition information was something
it was doing on its own, McDonald's issued a press release to that effect,
just days before it knew that the Attorneys General planned to announce
the agreement that resulted in the availability of ingredient and nutrition
information. McDonald's press release was widely reported across the United
States.
Within a day or so, the press reported the fact that McDonald's had engaged
in a bit of subterfuge and deception when it announced what it represented
to be a unilateral decision on its part but what was in truth an arrangement
to which McDonald's had arrived only as an unwilling participant. A copy
of a July 21, 1986 letter from McDonald's to us is attached hereto as Exhibit
3 and is incorporated fully herein by this reference. A copy of a July 23,
1986, letter from us to McDonald's is attached hereto as Exhibit 4 and is
incorporated fully herein by this reference. A copy of a July 30, 1986,
letter from McDonald's to us is attached hereto as Exhibit 5; and is incorporated
fully herein by this reference. A copy of an August 5, 1986, letter from
us to McDonald's is attached hereto as Exhibit 6 and is incorporated fully
herein by this reference.
Review of Exhibits 3-6 shows that McDonald's had assured us that would indeed
make the desired information available, as we had demanded. Because we had
achieved our goal of making this information public, we closed our investigation
without taking separate action against McDonald's for its deceptive act
of self-promotion.
11. Less than one year after this investigation was concluded, in 1987,
I investigated the practices of McDonald's a second time, this time together
with my counterparts in the offices of the Attorneys General of both California
and New York.
12.
We investigated McDonald's for a series of advertisements that promoted
McDonald's food as nutritious. From an analysis of the content of McDonald's
food as a whole, it was determined that McDonald's food was, as a whole,
not nutritious. Virtually all of the products sold by McDonald's contained
one or more attributes- such as high fat, high saturated fat, high sodium
content, and various additives- that made them food that should be avoided.
Therefore an advertising campaign that depicted McDonald's as a purveyor
of healthy, nutritious foods-as this campaign did-was deceptive and therefore
illegal under the laws of the States of California, New York, and Texas.
13. Upon conclusion of our initial investigation, we determined that the
aprropriate enforcement action would be to write McDonald's a letter that
advised it that its entire advertising campaign had the tendency and capacity
to deceive millions of Americans.
We therefore wrote to McDonald's on April 24, 1987 a letter
that was signed by then Texas Attorney General Jim Mattox. This letter advised
McDonald's of the deceptive nature of its advertising campaign and demanded
that McDonald' s cease and desist from further use of that advertising campaign.
A copy of this letter is attached hereto as Exhibit 7 and is incorporated
fully herein by this reference. Exhibit 7 includes copies of the eight advertisements
at issue. The April 24 letter discusses in depth the reasons for our conclusions
of deception.
14. In response to the April 24 letter, we received a letter from McDonald's
law firm,written by Joseph A. Califano, dated May 4, 1987. A copy of this
letter is attached hereto as Exhibit 8 and is incorporated fully herein
by this reference.
15. I responded to Mr Califano's May 4 letter by letter dated May, 1987.
A copy of my responsive letter is attached hereto as Exhibit 9 and is incorporated
fully herein by this reference. That letter advised McDonald's that the
advertisements were deceptive in a number of ways and had to be discontinued.
16. The April 27 and May 3 letters fully and accurately state the position
of the Attorney General of Texas. I cannot speak for the opinions of the
other two Attorneys General, solely because I was not their employee at
the time.
17. Further discussions with McDonald's then ensued. We've made it clear
to McDonald's that the advertisements were deceptive and illegal both as
a whole and in certain specifics. For example, one advertisetment claimed
that sodium was "down across the menu." Because sodium had only
been reduced in a relatively small minority of the products sold by McDonald's
and because many of McDonald's products continued to contain in one item
more than half of the sodium that health prefessionals recommend for an
average person's total consumption in an entire day we concluded that this
specific statement was deceptive and false and therefore illegal.
18. In another example, an advertisement for milk shakes said that McDonald's
shakes contained "Wholesome milk, natural sweeteners, a fluid ounce
of flavoring, and stabilizers for consistency and that's all." The
truth was somewhat different - the shakes contained an artificial flavoring
and the chemical preservatives sodium benzoate and sodium hexametaphosphate.
McDonald's did not dispute the fact that the shakes contained artificial
flavoring or the chemical preservative sodium benzoate; it solely responded
that sodium hexametaphosphate was a stabilizer and not a preservative (albeit
nonetheless an artificial one).
With this minor correction of the facts in mind, we reevaluated
the advertisement and affirmed our prior conclusion that the milk shake
advertisement was false-because it falsely omitted the presence of an artificial
chemical preservative - as well as deceptive - because it failed to disclose
the material facts that these supposedly wholesome milk shakes contained
an artificial flavoring and an artificial stabilizer.
19. In a third example. One of McDonald's advertisements sought to reassure
customers about cholesterol. Although the advertisement focused on french
fries. McDonald's also chose to include information on its regular hamburger
in the pictorial portion of the advertisement. That portion of the advertisement
emphasized the relatively low cholesterol content of the regular hamburger
but failed to disclose that hamburger's significant saturated fat content.
McDonald's response to this example was in essence to deny its existence.
McDonald's emphasized that the hamburger was not mentioned in the text of
the advertisement.
20. McDonald's response to this charge provides an excellent demonstration
of the difference between a false statement and a misleading and deceptive
one. As can be seen from a reference to the advertisement itself, attached
to Exhibit 7, the cholesterol information about the regular hamburger is
given in a chart that is a prominent part of the advertisement and not in
the text of the advertisement. Therefore, it is literally true for McDonald's
to say that the regular hamburger is not mentioned in the text, but it
is also misleading and deceptive for McDonald's to so declare, because the
advertisement in fact contains the very claims about which we complained.
Because a pictorial portion of a print advertisement is usually more noticed
than the text of the advertisement and because the law requires that the
message of the advertisement must be considered as a whole as well as in
individual components, we continued to believe that McDonald's advertisement
was deceptive because it failed to disclose the material fact that the regular
hamburger contained significant amounts of saturated fat.
21. These three examples were intended only to give McDonalds specific instances
of ways in which their advertising was deceptive. We continued to believe
and continued to advise McDonald's that, in addition to these and other
specific instances of falsity or deception, McDonald's entire nutrition
advertising campaign was deceptive across the board and was therefore in
violation of our state laws, because it falsely and deceptively represented
that McDonald's food was nutritious as a whole.
22. McDonald's assured us that it had already stopped using these deceptive
advertising, without admission of liability. We therefore decided that further
action would not be required. It was a nearly-uniform aspect of settlements
with the Office that a resolution without litigation was not required to
include an admision of illegal behavior. It was also a frequent practice
to resolve investigations involving false or deceptive advertising with
an assurance from the company that the offending advertisements would not
be used again in the future. We received this assurance from Mc Donald's
in this matter and, to the best of my knowledge formed after monitoring
for compliance, the advertisements did not appear again in the future (possibly
aside from publications that could not be stopped because they were too
far along in their printing process).
SWORN TO AND SUBSCRIBED BEFORE ME THIS 12TH DAY OF JULY 1994
Julie Rosiles
Notary Public in and for the State of Texas
United States of America
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date signed:
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July 12, 1994
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status:
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Appeared in court
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references: Not
applicable/ available
exhibits: exhibits available here
transcripts of court appearances:
related links:
