Day 024 - 15 Sep 94 - Page 10

     
     1        as opposed to nutritional information on the packaging
     2        itself was a fairly clear cut violation of our state food
     3        and drug laws, as well as the federal food and drug law,
     4        which is virtually identical to at least the Texas food
     5        and drug law.  The food and drug laws require that any
     6        package food be labelled to give its ingredients.  These
     7        foods are under the definition of the law of packaged
     8        foods.
     9
    10        The failure to give the ingredient information on the
    11        package on either the plastic box or the paper wrapper or
    12        the cup, or whatever the company chooses to use to package
    13        its materials, whatever they put it into, that is the
    14        package under the law.  Under our law that is where we
    15        could have required McDonald's and the other fastfood
    16        restaurant chains to put the information.
    17
    18        Secondly, we considered what was a less certain issue,
    19        disclosure of nutritional information.  For that we looked
    20        not to our food and drug laws, but to our consumer
         protection laws.  Our consumer protection laws require
    22        that a company disclose information when failure to do so
    23        represents -- is a materially misleading fact that they
    24        are done usually, they usually take an intentional
    25        manner.
    26
    27        Here we had relatively little problems that the failure to
    28        disclose was intentionally done.  The companies certainly
    29        knew that people wanted to have access to this information
    30        and they certainly deliberately chose not to put it on
    31        their packaging.  We knew that at least after the meeting
    32        with them that they were not doing it; they knew they
    33        should, that consumers wanted it.
    34
    35        But it was a tougher row to hoe legally for us to be able
    36        to force McDonald's and the other companies to disclose
    37        each and every aspect of nutritional information that
    38        consumers wanted under this law.  You could make a very
    39        good argument, and probably a successful one, if a company
    40        chooses to say with respect to one product "low in
         sodium", that that is intrinsically deceptive if the
    42        product is also high in saturated fat, or vice versa.
    43
    44        For instance, a company I neglected to mention earlier
    45        took enforcement action along with a number of other
    46        states against the Campbell Soup Company for promoting its
    47        chicken soup as low in fat, which it was, but they did not
    48        tell you it was jam packed with sodium.  It had almost, in
    49        one can of chicken soup that Campbell produced, it had
    50        almost all the sodium that should be consumed in a day by 
    51        an average adult. 
    52 
    53   Q.   Why would you consider that to be deceptive?
    54        A.  Because there you have a direct link between a
    55        disclosure that a claim that a product is low in fat and,
    56        I believe, explicitly or implicitly would reduce your risk
    57        of heart disease, while at the same time not telling you
    58        that a product is high in sodium, which would reduce your
    59        risk of a stroke, or increase, rather, your risk of a
    60        stroke; those were both serious concerns.