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Justice Bell's Verdict
19th June 1997
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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.
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6. McDonald's food, heart disease, cancer of the breast and cancer of the bowel.
The next section of the leaflet, after the sections which deal with starvation in the Third World, the destruction of rainforest and recycled paper, turns to McDonald's food, with the headline: "What's so unhealthy about McDonald's food?"
What they don't make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals - which describes an average McDonald's meal - is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone causes about 180,000 deaths.
Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald's prefer the name "fast food". This is not just because it is manufactured and served up as quickly as possible - it has to be eaten quickly too. It's a sign of the junk food quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time. PAYING FOR THE HABIT Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food
and send nutrients into the blood. McDonald's food is so lacking in bulk that it is hardly possible to chew it. Even their own figures show that a "quarter pounder" is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction -a "craving". That means more profit for McDonald's, but constipation, clogged arteries and heart attacks for many customers". Beneath that part of the text is the cartoon showing a man or a woman and a cow or steer, held in a burger with the legends "if the slaughterhouse does not get you" and "the junk food will!" in bubble speak." Again, the front page subtitle "Everything they don't want you to know" and the opening section of text including the words "It's (McDonald's) got a lot to hide" are relevant to the meaning of the leaflet in this part of the case, as are the legends "McCancer", "McDisease" and "McDeadly", printed across McDonald's arches. The meaning of this part of the leaflet, associating McDonald's food with cancer of the breast and bowel and heart disease was so hotly contested that the parties agreed that I should decide its meaning and some related matters as the trial proceeded, the better to decide just what further evidence to call. On the 20th November,1995, I therefore gave a reasoned ruling on the meaning of the words complained of in this part of the leaflet and the question of whether they were defamatory of the Plaintiffs. The meaning pleaded in amended form in the Statement of Claim is as follows:
(1) Sell meals which cause cancer of the breast and bowel and heart disease in their customers. (2) Despite knowing that this is an accepted
medical fact, deliberately and dishonestly conceal that fact from the public by publishing nutritional guides which (a) suppress that fact; and (b) falsely claim that their meals are a useful and nutritional part of any diet." The Plaintiffs pleaded other, additional meanings, but they added nothing in my view. Ms Steel, speaking for herself and Mr Morris argued that the leaflet meant: "McDonald's portray their food as a useful and nutritious part of any diet, when the reality is that an average McDonald's meal is high in fat, sugar, animal products and salt (sodium) and low in fibre, vitamins and minerals, and that if your diet is high in fat, sugar, animal products and salt (sodium) and low in fibre, vitamins and minerals, the medical profession considers that you are at greater risk of suffering cancer of the breast and bowel and heart disease. The type of food sold at McDonald's encourages over-eating, because it lacks in bulk and also because its high sugar and sodium content can lead to a craving for this type of food. This increases profits for McDonald's, but when people over-eat this type of food it can lead to problems such as constipation, clogged arteries and heart attacks". The main arguments of counsel in support of the Plaintiffs' construction of the leaflet, were as follows. One should envisage the ordinary, reasonable reader of this particular leaflet as a person of average intelligence, and average age (that is not a child or an elderly person) with an average experience of the world (that is not an expert in nutrition). One should judge the "impression" which the leaflet would make on such a reader who would not hunt for the message as he might with a serious article in a heavyweight newspaper. The numbers of readers who had sent off for information and received the leaflet was probably small when compared with the numbers of readers who were handed it in the street, but whether the ordinary, reasonable reader received the leaflet at an anti-McDonald's meeting, or in the street or through the post, one did not envisage him sitting down and studying the leaflet carefully
or bothering to read it more than once. The leaflet was not a specialist publication. It was directed at the world at large, not at people with a particular interest in nutrition. The impression made on such a reader would be that eating McDonald's food caused cancer of the breast and bowel and heart disease and that although McDonald's knew this they covered it up in their literature "with a lot of soapy stuff about how nutritious their food is." The main impression would be of the danger of eating McDonald's food, with the deception in second place. The leaflet was nothing more than a "scare sheet" and those responsible for it could not be surprised if readers drew from it the most derogatory meaning available. There was no conflict between the headlines and the text. "The headlines perfectly and concisely reflect, as does the cartoon, the sense of the particular passage about nutrition" in the text. The front page and the introductory passages of the leaflet told the reader that McDonald's deliberate deceptions were to be revealed in the leaflet, and when the reader opened the leaflet out, the McDonald's arches with the words written through them would catch his eye as the leaflet's own summary of the true facts which the reader was going to learn in the leaflet. The headline to the relevant text plainly told the reader that McDonald's food was unhealthy and that the reader would be told why. The cartoon appeared beneath the relevant text and told the reader not to eat McDonald's food. "It may kill you". The whole leaflet asserted certainties, with no trace of a doubt or reservation or even an argument, and it was not susceptible of careful thought at all. The leaflet confused food with diet, and the ordinary, reasonable reader of the leaflet, the man or woman of average intelligence and knowledge, would not sit down and try to work out the pathways by which McDonald's food might cause ill-health. He would not notice any distinction made in the text between diet on the one hand and food on the other. Although the ordinary
reader might know something about issues relating to diet and health the leaflet purported to tell him something he would not know, namely the extent of the danger involved in eating McDonald's food. The message was: "This food is dangerous. You should not eat it." The main arguments of Ms Steel and Mr Morris, put forward jointly, in support of their construction of this part of the leaflet, were as follows. The proper context for the remarks made in the first two paragraphs of the text was to rebut McDonald's portrayal of their food as a useful and nutritious part of any diet. The purpose of the text was to show that McDonald's food was not a useful and nutritious part of any diet. The leaflet did not ascribe motive to McDonald's inaccurate portrayal of the qualities of their food. "It just says that they do not give the full facts". The McDonald's arches, the headline and the cartoon did not add anything to the meaning of the words in the text nor did they change the meaning of the text in any way. The words across the McDonald's arches were designed merely to catch the eye and to encourage people to read the rest of the leaflet. People would not read them as statements of fact; but even if they did they would have to ask what they meant because they meant absolutely nothing on their own. "Their meaning must be taken from the text. They rely on the text for an explanation of the meaning". "McCancer", for instance, could mean that McDonald's were a cancer on society, or that you could develop cancer from dioxins through the packaging process or through CFC gases destroying the ozone layer. "McDeadly" could refer to the killing of animals or starvation in the Third World. The arches could not have a stronger meaning than the text which explained them; and the ordinary, reasonable reader would read the text to find out the meaning of the arches and headline. The cartoon depicted a symbolic crushing of both people and animals by the burger industry consuming and swallowing up anything getting in the way of it making its profits including workers in the industry. The average person in the street would not take the cartoon literally. Dead cows and dead people do not talk and McDonald's do not put human remains in their burgers.
The cartoon did not specifically refer to McDonald's. It was consistent with closing passages in the leaflet, which referred to junk-food chains' ruthless exploitation of animals and people. The cartoon was there to break up the text, to catch the eye and to encourage the reader to read the text of the leaflet. The ordinary, reasonable reader would not think very much about it. The text carefully explained what was meant by the headline, "What's so unhealthy about McDonald's food?" Having seen the arches, the headline and the cartoon, the ordinary reasonable reader would go on to read the text. No such reader would assume that eating McDonald's food caused cancer, without going on to read the text of the leaflet. Most people were aware of issues of diet and health and they knew that diseases such as cancer and heart disease were not brought about by a meal which they ate or even by a week or a month of "unhealthy" eating. They knew that many, perhaps most, people were not affected at all and that where such diseases did occur they took several years to develop and were influenced by other factors. Moreover, the leaflet was clearly a reference document for people interested in the issues which it raised. It would be read carefully. If there was any confusion in the reader's mind he or she would read it more than once. For these reasons it was necessary to concentrate on the text to find the leaflet's meaning. The text of the leaflet did not confuse food with diet. It did not say that you took a real risk of developing cancer of the breast or bowel or heart disease if you ate the Plaintiff's food, let alone that eating it caused those diseases. The leaflet did not say that anything in McDonald's nutrition guide was untrue or a lie or deliberately deceptive. It said that the guide left out the links between diet and degenerative diseases and ill health and, therefore, that McDonald's were not telling the whole story. The leaflet was not defamatory of the Plaintiffs since it merely criticised their products; it did not allege that they were being deliberately deceptive in their nutrition guide, and it did not allege that they purposely encouraged customers to overeat to their detriment. Each side argued that the other relied upon the parts of the
leaflet which encouraged its own interpretation and ignored the rest. My conclusions were and are as follows: The leaflet is a strong attack on McDonald's and their practices, although it also attacks giant corporations in general. It does not pull any punches. It clearly states that McDonald's food is very unhealthy. The headline to the text states this by asking: "What's so unhealthy about McDonald's food?" I note the word "so". I do not accept that the arches or the cartoon catch the eye only, without delivering a message. The arches with "McCancer", "McDisease" and "McDeadly" give the message that McDonald's food is dangerous. Those words, by the prefix "Mc", associate cancer, disease and death with McDonald's. Cancer is best known as a disease affecting humans. One finds the word "cancer" in the text only under the headline "What's so unhealthy about McDonald's food?" So in my view the ordinary, reasonable reader would be led to associate cancer and disease with McDonald's food. In my view the ordinary, reasonable reader of the leaflet would be led to associate "McDeadly" both with McDonald's food and with the slaughter of animals to provide that food. "McDeadly" appears above the column of text with the headline "What's so unhealthy about McDonald's food?", although that may have been unplanned. The meaning of the cartoon with the words "if the slaughterhouse doesn't get you the junk food will", is that McDonald's food will kill you. Slaughterhouses "get" cattle in the sense that they are fatal to them. So the person in the cartoon says in effect that junk food will "get" you in the sense that it will be fatal. McDonald's food is described as junk food in the text above the cartoon. The symbolic sense urged by the Defendants is too strained to be realistic. I bear in mind that there is a section of the leaflet which deals with food poisoning, but there is nothing which relates the arches or the cartoon to what is said in that section rather than to the column of text headed "What's so unhealthy about McDonald's food?". On the other hand I consider that the ordinary, reasonable
reader of this leaflet would read the text of the leaflet as well as the arches, headline and cartoon. I envisage as that notional reader a person who, handed the leaflet in the street is interested enough to read the leaflet rather than put it in the first litter bin, or who received it through the post because he or she was interested in the causes which Greenpeace (London) espoused, perhaps having asked for more information about McDonald's, or who was interested enough to go to an anti-McDonald's meeting, or who had the leaflet passed on to them by someone who had received it and thought that he or she would like to or should read it. In my judgment that notional reader would read the leaflet quite carefully, and certainly would read quite carefully the parts of the leaflet concerned with McDonald's food, since McDonald's business is food. In my view the leaflet clearly seeks to persuade the reader to abstain from eating McDonald's food, and the ordinary, reasonable reader would read the leaflet more than once if necessary, to understand why he or she should do so. In my judgment such a reader would see from the text which I have quoted that the danger of McDonald's food was alleged to arise from its effect upon the customer's diet. In my judgment the text makes a distinction between diet and McDonald's meals (both being high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals) which the ordinary, reasonable reader of this leaflet would be alert to between 1987 and 1990 as well as now. Alleged connections between diet and ill-health have been widely broadcast for many years and no one would expect to be adversely affected by the occasional meal. Despite this, the text does not in my judgment neutralise the message of danger conveyed by the arches, cartoon, and headline. In my judgment it leaves the message of a very real risk of suffering the serious degenerative diseases mentioned, by the effect of McDonald's food upon diet. In my judgment "linked with cancer of the breast and bowel, and heart disease" would mean "causally linked with" those diseases to the ordinary, reasonable reader who would not know of the more guarded use of words like "linked with " adopted by professional experts such as epidemiologists. I have no doubt that the message taken by the ordinary, reasonable reader would come from arches, cartoon, headline and
text together. Further in my judgment the ordinary, reasonable reader would draw the inference from the text that McDonald's knew of the unhealthy nature of its food and the risk involved in eating it via its possible effect upon the consumer's diet. Why else assert that the matters spoken to are "an accepted medical fact" which, by necessary inference, any large commercial food provider would surely know ? Moreover, there are clear and strong averments of intentional deception by McDonald's in the form of the man with the mask and the legend "Everything they don't want you to know" on the front page of the leaflet, which the ordinary, reasonable reader would, in my judgment, understand to be continued by the opening words of the relevant text: "McDonald's try to show..." In my view, the text under "Paying For The Habit" does no more than provide colour and confirmation to the case presented against McDonald's and its food elsewhere in the leaflet, and the only relevance of the text under "Fast = Junk" is to associate McDonald's with the junk food referred to in the cartoon. For these reasons, and having regard to the impression made on me by the leaflet as a whole, I found in my ruling given on the 20th November,1995, that the leaflet bears the meaning:
When deciding the meaning of the leaflet, the Court is not concerned with the merit or demerit of any possible defence of justification; and I was careful to keep this in mind when making my interlocutory decision on the 20th November,1995, by which time I had heard only part of the evidence on this part of the
case, and none of the final arguments on the merits of the Plaintiffs' claims that the defamatory meaning was untrue and the Defendants defence that it was justified. When all the evidence had been heard and the parties arguments were deployed, it became clear that the meaning which I had found needed elaboration in two respects, so that the merits of the matter could properly be decided. Firstly, the words "eating it (McDonald's food) may very well make your diet high in fat..." might be thought to mean, "eating it at all, even just once", whereas it is clear from what I have already said that the reader of the leaflet would not expect to be adversely affected by the occasional McDonald's meal, at least so far as degenerative diseases were concerned; nor would he or she expect his or her diet to be adversely affected by the occasional meal. So fairness to the Defendants and loyalty to my reaction to what the relevant parts of the leaflet, taken together, mean, require that the words "eating it" be read as "eating it more than just occasionally" in the meaning as I expressed it on the 20th November,1995. On the other hand there is nothing in the leaflet to suggest to the reader that he or she has to eat McDonald's meals often, once, twice or even several times a week for instance, before diet is affected and there is a very real risk of degenerative disease. Secondly, the words "very real risk" might be argued to mean very real in the sense of "existing" whereas I meant it in the sense of a serious or substantial risk although falling short of probability; a risk which the ordinary, sensible reader of averagely robust temperament would worry about; not a minimal or bare risk which is there, but which one can get through life without undue concern for. In my judgment, the meaning which I have found falls within the scope of the meaning pleaded by the Plaintiffs and it is defamatory of both Plaintiffs and damaging to their trading reputations - the First Plaintiff as the corporation with overall responsibility for McDonald's everywhere, and the Second Plaintiff with responsibility for McDonald's in England where publication is complained of. The message goes beyond mere disparagement of the Plaintiffs' food products. Both an allegation that the Plaintiffs sell food which they know to be very unhealthy and an allegation that
they nevertheless deceive customers by claiming that their food is a useful and nutritious part of any diet reflect badly on the Plaintiffs' conduct of their trade and businesses and would tend to deter potential customers from buying their food and make other people reluctant to deal with them. Although the Defendants pleaded alternative defences of justification and fair comment in respect of the words complained of in this part of the case, I see the defamatory meaning as a series of statements of fact and not opinion. The overall sting, that the Plaintiffs' food is very unhealthy and known to be so, could be opinion if expressed as opinion, but in my judgment it is expressed as simple fact. It follows that if the defamatory meaning of this part of the leaflet is to be successfully defended it must be shown to be true, and it seems to me that the essential issues in this part of the case are as follows. Firstly, is McDonald's food "high" in fat, sugar, animal products and salt (sodium), and "low" in fibre, vitamins and minerals? Secondly, if so, is it right that eating McDonald's food more than just occasionally might well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals? Thirdly, if so, will it bring the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result, i.e. does a diet high in fat, sugar, animal products and salt (sodium) and low fibre, vitamins and minerals lead to a very real risk of those degenerative diseases . Fourthly, in the light of the answers to those questions, is McDonald's food very unhealthy as the First and Second Plaintiffs must know? Finally, do McDonald's (including the First and Second Plaintiffs) knowingly deceive customers by claiming that their food is a nutritious part of any diet despite it being so unhealthy? Those questions accord with the analysis of counsel for the Plaintiffs and Ms Steel, speaking for herself and Mr Morris. The evidence on these issues was given by a number of expert witnesses whose opinions one side or the other invited me to
adopt. I was also referred to a large number of papers written by experts who did not give evidence. The witnesses put forward as experts were mostly scientists or professionals by training and experience in medicine or nutrition. One had no relevant scientific training, but was widely read in the field, in which he had moved for a number of years. Opinion evidence of the proffered experts was admissible on matters relevant to the first three issues because resolving them called for expertise on matters which were not within my own experience or knowledge or which were, at best, only partly so. Evaluation of each particular expert's opinion, however, remained a matter for me, especially where opinions were expressed on an ultimate issue which I have to decide. It seemed best that they should all express their opinions leaving me to assess the extent to which their expertise had been achieved from reading source material which I could just as well read and understand for myself. The degree of expertise actually revealed by a witness in his evidence was obviously an important part of the process of attributing weight to his opinion. All the expert witnesses referred to writings on the subject of diet and disease. The evidential status of books, reports or articles written by experts or groups of experts who do not actually give evidence has always been a grey area, in my experience. Often what is said in a scientific article - medical articles are the ones with which I am most familiar forensically - is adopted by a witness to support his own evidence. There is no problem about his own evidence, but does the article stand as evidence in its own right, for instance on matters upon which the witness has not done research, or where he has not treated or questioned the patients in the sample upon which the article was based? I adopt what Bingham J. said in H. v. Schering Chemicals Ltd [1983] 1 WLR 143. One of the major issues in that case was whether a drug manufactured and marketed by the Defendants had caused the injuries of which the Plaintiffs complained, and the question arose as to whether large numbers of documents summarising the results of research, and articles and letters published in medical journals concerning the drug, could be adduced in evidence. At page 148 A to G, Bingham J. said:
"It is, as I have said, common ground that these articles can be referred to by experts as part of the general corpus of medical knowledge falling within the expertise of an expert in this field. That of course means that an expert who says (and I am looking at it from the plaintiffs' point of view for the purposes of my example) 'I consider that there is a causal connection between the taking of the drug and the resulting deformity', can fortify his opinion by referring to learned articles, publications, and letters reinforcing the view to which he has come. In doing so, he can make reference to papers in which a contrary opinion may be expressed but in which figures are set out which he regards as supporting his contention. In such a situation one asks: Are the figures and statistics set out in such an article strictly proved? and I think the answer is no. I think that they are nonetheless of probative value when referred to and relied on by an expert in the manner in which I have indicated. If an expert refers to the results of research published by a reputable authority in a reputable journal the Court would, I think, ordinarily regard those results as supporting inferences fairly to be drawn from them, unless or until a different approach was shown to be proper. Let me apply that to this case. Mr Beldam submits that there are great dangers in relying on those results contained in this material. For example, he says that certain of them refer to pills having been prescribed but leave it uncertain whether the pills were taken. If the pills were taken the results as published often leave it unclear at what stage of a pregnancy they were taken. Were they, for example, taken at a stage when it was too late for the foetus to be affected by the pills, even if they were capable of having injurious effect in other circumstances? How were the control cases matched? How were the histories taken? How were the cases identified, and so on? All of these are valid points which will fall to be considered and assessed when they are made and when they are put to and discussed with any expert who relies on the articles. It may be that some of the
answers will be found in the articles themselves. It may be that other matters will be left in doubt. It may well be that grounds will emerge for viewing the results of the research with caution or scepticism. But in my judgment the proper approach of this court is to admit the articles, in the sense of reading them, and to give the factual assertions in those articles such weight as appears to the court, having heard any cross-examination or other evidence, to be proper." Bingham J. accordingly ruled that the Plaintiffs were entitled by means of expert evidence to incorporate the contents of the articles in their evidence. It would be given such weight as in the light of any other evidence and any cross-examination appeared proper. Since 1983 it has become increasing popular for international bodies and Government Departments, including Government Departments in the U.K., to commission reports by panels of experts on topics, including diet, which relate to public health. The panels bring their own expertise to their conclusions, having considered and analysed large amounts of research and large numbers of articles on the topics with which they are concerned. The panels, for example, the Panel on Dietary Reference Values of the Committee of Medical Aspects of Food Policy (COMA) and the Cardiovascular Review Group of COMA then report to the Department of Health which publishes the reports in book form. COMA 41 in 1991 and COMA 46 in 1994 are reports made by the Panel and the Review Group to which I have referred. An equivalent report of a Cancer Review Group is expected soon. In my judgment I should treat such reports in the same way as the learned articles which Bingham J. was considering, and for the same reasons. Having said all this however, I am bound to be most influenced by the direct evidence of the witnesses whom I have seen and heard, especially in an area where the literature is so copious and where there is something, indeed an awful lot, for everyone The evidence relating to this part of the case was heard in two parts: firstly in July, September and October, 1994, as the trial got under way, and secondly in May and June, 1996, to cope with my November,1995, ruling on the meaning of the leaflet and with advances in the science of diet and degenerative disease.
So I come to the first issue: is McDonald's food "high" in fat, sugar, animal products and salt (sodium) and "low" in fibre, vitamins and minerals? The Defendants contended that the measure of what was "high" or "low", should be the various dietary recommendations made by national and international bodies. If a food or meal was above the upper recommended limit for something like fat, it was to be treated as high in fat. If a food or meal was below the lower recommended limit for a particular nutrient, it was to be regarded as low in that nutrient. Even given that the recommendation related to diet, and not to a particular food or meal, it was natural and sensible to relate a food or a meal to the levels to be aimed for in the diet as a whole when judging whether the food or meal was high in one component or low in another. Recommendations differed but there was broad agreement, particular so far as fat was concerned. In September,1983, the Health Education Council produced a discussion paper on proposals for nutritional guidelines for health education in Britain, prepared by a working committee for the National Advisory Committee on Nutrition Education (NACNE). NACNE did not like the phase "balanced diet" which had been associated with problems of vitamin, protein or mineral deficiency which were no longer the major nutritional diseases in Britain. The paper recommended a "healthy varied diet" and made various long term proposals. Of particular relevance are the proposals that fat intakes should be on average 30% of total energy intake and saturated fatty acid intake should be on average 10% of total energy intake. This could not be achieved rapidly and the aim in the 1980s should be to reduce the average total intake fat intake by 10% from the current 38% of total energy Kcal to 34% and to reduce the average saturated fatty acid intake from the current 18% of total energy to 15% of total. The aims for the 1980s gave the figures for fat and saturated fat in grams before giving them in percentages of energy. The long term proposals also included reducing average sucrose intake to 29kg per head per year, and causing salt intakes to fall by an average of 3g per head per day.
Fibre intake should increase on average to 30g from 20g per day, the increase to come mainly from the increased consumption of whole grain cereals. An increase in vegetables and fruit consumption should also be advocated. Protein intake should not alter, but a greater proportion of vegetable protein developing from the other recommendations was appropriate. NACNE made no recommendations to reduce dietary cholesterol, due to a variation in current scientific opinion. The World Health Organisation's 1990 report on Diet, Nutrition and the Prevention of Chronic Disease set "population nutrient goals." For total fat the upper limit was 30% of energy and the lower limit 15%. For saturated fatty acids the upper limit was 10% of energy. The lower limit was zero because saturated fatty acids were not essential nutrients and they did not need to be included in the diet. For salt (sodium chloride) the upper limit was 6 grams per day. No lower limit was defined. For free sugar the upper limit was 10% of energy. The lower limit was zero. For dietary fibre expressed as non-starch polysaccharides (NSP) the upper limit was 24 grams per day and the lower limit was 16g. For fruit and vegetables the lower limit was 400 grams per day, of which at least 30g should be in the form of pulses, nuts and seeds. For dietary cholesterol the upper limit was 300mg per day. The lower limit was zero. In 1991, COMA 41 considered the range of conditions to which dietary fat might be related and recommended that saturated fatty acids should provide an average for the population of 10% of total dietary energy, and that total fatty acid intake should
average 30% of total dietary energy including alcohol or 35% of energy derived from food. The Panel decided that it was not possible to establish an Estimated Average Requirement (EAR) of sodium but it suggested that the Lower Reference Nutrient Intake (LRNI: the amount of the nutrient that was enough for only the few people in a group who had low needs) be set at 575mg per day with a Reference Nutrient Intake (RNI: the amount that was enough, or more than enough, for about 97% of people in a group) of 1600mg per day. The Panel was unable to offer guidance on high consumption but noted that usual high intakes were in excess of 3.22g (3220mg) a day. The Panel saw no physiological advantage in exceeding that intake and considered that it would not be appropriate to increase it further. Later the report said that according to a 1990 survey mean intakes of sodium were 3,376 and 2351mg/d in British men and women respectively. The Panel proposed that adult diet should contain an average for the population of 18 grams per day (individual range 12 to 24g per day) of non-starch polysaccharide from a variety of foods whose constituents contained it as a naturally integrated component. The Panel saw no advantage in increasing intakes of NSP in excess of 32g per day. The Panel gave guidance on intakes of some vitamins and some minerals in addition to sodium. They were RNIs. The Panel's investigations covered research up to and including 1990. In 1992 the U.K. Government White Paper "The Health of the Nation" set dietary targets to help reduce coronary heart disease (CHD). The targets were to reduce the average percentage of food energy derived by the population from saturated fatty acids by at least 35% by 2005 (from 17% in 1990 to no more than 11%), and to reduce the average percentage of food energy derived by the population from total fat by at least 12% by 2005 (from about 40% in 1990 to no more than 35%). In 1994, COMA 46, the Report of the Cardiovascular Review Group on Nutritional Aspects of Cardiovascular Disease recommended a reduction in the average intake of common salt (sodium chloride) by the adult population from the current level of about 9g/day (150 mmol/d) to about 6g/day (100 mmol/d) representing about 7g/day (115 mmol/d)
for men and 5g/day (85 mmol/d) for women. 1 mmol = 23mg sodium (Na): 1g salt (NaCl) contains 17.1 mmol Na. So, counsel for the Plaintiffs calculated, the recommended level for a man was 2358mg/d of sodium itself. COMA 46 recommended that the average contribution of fatty acids to dietary energy be reduced to no more than about 10%. It recommended a reduction in the average contribution of total fat to dietary energy in the population to about 35%. It recommended that the average dietary intake of cholesterol should not rise. A number of the Defendant's witnesses measured McDonald's meal combinations or food items against those recommendations. Ms Jane Brophy took a degree in chemistry before qualifying as a State Registered Dietitian. Her work involves working with other professionals within the NHS including general practitioners, practice and district nurses and dietitians, giving them information and advice on how to prevent diet-related diseases. Measuring various McDonald's meal combinations in 1993 against the various recommendations, Ms Brophy said that in her opinion an average McDonald's meal was high in fat (particularly saturated fat found mainly in animal products), sugar, and salt (sodium). It was low in fibre and some vitamins. This could lead to diseases such as heart disease and certain cancers. Using the rule of thumb that one gram of fat produces 9 Kcalories of energy, Ms Brophy gave analyses of two meal combinations published by the Second Plaintiff in Good Food, Nutrition & McDonald's in October,1995. The analyses were: Meal Combination 1
Fat 35.1 grams (315.9 kcal or 45% Fat)Those calculations came from figures in the Second Plaintiff's "Good Food, Nutrition and McDonald's" leaflet of October,1985. Ms Brophy said that the sodium content of Meal Combination 1 was 1,488mg which was close to the maximum of 1,600mg per day recommended by the Government. In my view that involved a misreading of COMA 41 which referred to an RNI (the amount which was enough for 97% of a group) of 1600mg. Ms Brophy said that similar calculations could be done which showed that a typical McDonald's meal was lacking in fibre, fresh fruit and vegetables and certain vitamins and minerals. She appeared to relate that to the fact that the WHO recommendation of 400g/d of fresh fruit and vegetables was far above the amount found in a McDonald's meal. 400g/d would mean something like five whole pieces like a whole banana, apple, or pepper. McDonald's meals were displacing more positive types of food. Ms Brophy thought that the COMA figures of 35% of energy from total fat was really an arbitrary one, picked as achievable. The actual target which would benefit people's health would be nearer the 15 to 30% recommended by the WHO. She thought that if someone ate once a week at McDonald's and high fat meals the rest of the time, one could attribute the unhealthy effect on his diet to the McDonald's meal, because the McDonald's meal was a style of eating. Dr Neal D. Barnard M.D. came from the U.S.A. to give evidence, primarily on the first and third issues. He confirmed his written witness statements dated 27th July,1993, and 12th April,1994. He spent four days in the witness box in October, 1994. He made a third witness statement dated 1st July,1996, which was admitted under the Civil Evidence Act. Dr Barnard, is a licensed physician, a graduate of the George Washington University School of Medicine, and a diplomat of the National Board of Medical Examiners. Since 1985, he has been President of the Physicians Committee for Responsible Medicine, a non-profit making organisation of more than 3,000 physicians in the United States. It was formed in 1985 to address the issue of preventing chronic disease with particular reference to diet. Dr Barnard has written books and articles on nutrition and health. He lectures frequently on the role of nutrition in preventive medicine. He is Editor-in-Chief of Good Medicine, a quarterly magazine on medical issues including nutrition. He said that in those
capacities he had extensively reviewed the medical literature on nutrition issues. He said that his medical training gave him an advantage in analysing the literature. Although his clinical practice was in psychiatry, that was now limited to one morning a week, and he thought that he had a particular expertise in nutritional factors which affected chronic disease. The essence of Dr Barnard's evidence on the first issue was that many products sold at McDonald's restaurants were high in fat and cholesterol, and low in fibre and certain vitamins. For example, according to Bowes and Church's Food Values of Portions Commonly Used (1989) by J.A.T. Pennington, 55% of the calories in a Big Mac came from fat, along with 83mg of cholesterol. For a cheeseburger, fat content was 45% with 41mg of cholesterol. French fries were 47%, while a hamburger was 39% fat and held 29mg of cholesterol. Many other McDonald's products were similarly high in fat and cholesterol. McDonald's products were in general particularly high in saturated fat although they were also high in total fat. They tended to be low in fibre and because they were meat based they tended to be low in certain vitamins as well. They presented more fat than an average and unmodified diet. Dr Barnard said that the average fat intake in the U.S. was approximately 37% of calories. He noted that in the report of Professor D.J. Naismith, a witness to be called by the Plaintiffs, the fat content of a typical McDonald's meal was put at 43%, and that a typical McDonald's meal contained both cholesterol and fat. However, in Dr Barnard's view the appropriate yardstick by which to judge foods of the type sold at McDonald's and their contribution to health risk was not the average American diet, but the dietary guidelines recommended by health authorities. The U.S. government and most major private health organisations had for many years recommended limiting dietary fat intake to less than 30% of calories, 10% from saturated fat. Dr Barnard thought that those
figures were too high. The figure of 30% was an arbitrary round figure which did not require much change on the part of the American public. It had a scientific and political element as a result of lobbying by the food industry and others. International comparisons, such as those from various sections of China, clearly showed advantages in reducing fat intake to levels which were substantially lower than those currently recommended by U.S. health authorities. A number of McDonald's products were "really quite high" in sodium, by which he meant over a gram of sodium in a single food. Some of McDonald's products were high in sugar. Their sodas had sugar as virtually their sole nutrient. They were also low in fibre, some vitamins and minerals. Professor Michael Crawford is the Director of the Institute of Brain Chemistry and Human Nutrition at Queen Elizabeth Hospital for Children at Hackney. His first degree was in chemistry. He then studied biochemistry before obtaining a doctorate in chemical pathology in 1960. Since then his research programme has focussed on the relationship between nutrition and disease. His particular field is dietary fat and fatty acids and their relationship to human disease. He has published a very large number of papers. He has been a member of a number of consultative bodies and committees investigating questions which are relevant to issues in this part of the case. He is clearly a distinguished man and he was an engaging witness. Professor Crawford gave evidence on the issues of whether McDonald's products are high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and whether a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, created the very real risk of heart disease or cancers of the breast and bowel. So far as the first issue was concerned, Prof. Crawford produced analyses of McDonald's milk shakes and a beefburger in August,1990. They differed from figures produced by independent analysts for McDonald's, but this was probably because Mcdonald's had reduced their fat content since 1990. Prof. Crawford's 1990 analysis of a chocolate milk shake showed total fat providing 25% of energy. Saturated fat provided about 16% of energy; 17.4% if one included trans isomers (due to biohydrogenation in ruminant animals) which acted in the same way
as saturated fatty acids. McDonald's analysis was 17.3% for fat, and 12.3% for saturated fat. Prof. Crawford's figures were slightly higher for a strawberry milk shake. McDonald's were slightly lower. McDonald's analysis of a Big Mac showed total fat providing 48.5% of energy, and saturated fat 23.3%. Prof. Crawford calculated that DHA and EPA, the principal n-3 fatty acids which Prof. Crawford described as "anti-thrombotic and anti-cancer proliferation", were present in only trace amounts in the Big Mac. Prof. Crawford's analysis of a beefburger showed fat providing 56% of energy: saturated fat 26%; 29% including trans isomers. McDonald's analysis showed fat providing 31.7% of energy. The figures compared unfavourably with the various recommendations, and in summary, Prof. Crawford said, there was a high proportion of the types of fats and fatty acids which people were recommending be reduced and low proportions of those which people were recommending be increased. There was nothing wrong in someone going into McDonald's for a burger, in Prof. Crawford's view, but what concerned him was its overall influence on food choices around the world, exerted by effective advertising. By the time of his return to the witness box in 1996, Prof. Crawford had done some calculations of the nutritional content of two home-made chicken and beef meals with two Mcdonald's meals. The McDonald's chicken meal was a McChicken sandwich, medium french fries and medium coke. The home-made meal was pasta with diced chicken, peppers and coriander. The McDonald's beef meal was a hamburger, medium french fries and medium coke. The home-made meal was a ground beef burger in pitta bread made with lean beef. Generally speaking the McDonald's meals were higher in energy (kcal), fat and saturated fat, and lower in protein, fibre, vitamins and minerals than the home-made meals. However, the McDonald's meals did have protein, vitamins and minerals which were important nutrients. Potatoes from which french fries were made
were an important source of vitamin C. Fat generally was important as a source of energy, but Prof. Crawford would not describe saturated fat as an important nutrient. He would describe it as an "anti-nutrient". Prof. Crawford said that there was no doubt that McDonald's meals did provide nutrients. His point was that you could obtain them without having the high saturated fat load. In fact, if a 20 year old man's energy requirement for each day was about 2,500 kcal the 10% DRV for saturated fat in COMA 41 would allow 28 grams of saturated fat a day at 9 kcal per gram. The McDonald's chicken meal provided 5.58g and the McDonald's beef meal provided 6.32g. McDonald's chicken meal provided 3.6 grams of fibre and the beef meal 3.15g. Prof. Crawford had not included sodium and free sugars because he was not making a point about them. Dr Timothy Lobstein was called by the Defendants to give evidence on the first and second issues. Dr Lobstein's degree was in psychology. His doctoral thesis concerned the overlapping area between physiology and psychology. He is editor of The Food Magazine and co-director of The Food Commission, a small limited company which is a consumer orientated watchdog on food issues. He is a freelance journalist and consultant on food policy. When he gave evidence in October, 1994, he had recently joined the fast food panel of the Government's Nutrition Task Force. He described his area of expertise as food policy issues, in particular social science and food issues and their bearing on nutrition. So far as the first issue was concerned, Dr Lobstein said that he had examined the nutritional make-up of a variety of fast-food meals including all eight meal combinations published by the Second Plaintiff in "Good Food Nutrition & McDonald's" of October,1985, and he found that they were generally unbalanced with regard to their nutrient content. The eight meal combinations published by McDonald's had higher fat levels than recommended for an overall balanced diet while also having low levels of certain essential vitamins and minerals. If they were relied on for a substantial part of the diet they would not be providing sufficient vitamins and
minerals to the amount of fat which they provided. They were excessively fatty and salty. As an example Dr Lobstein took Meal Combination 1: Big Mac, Large French Fries, Apple Pie and a Regular McDonald's Cola. For a child taking in 2000 Kilo calories a day, a 35% fat allowance (per COMA) would mean 700 kcal or 78 grams of fat, yet Meal Combination 1 provided 64.4 g, or over 80% of the daily quota. That meal combination sounded to me to be more appropriate to a young man that to a child. With a daily intake of 2500 kcal a young man would have a fat allowance of 875 kcal or 97g, of which Meal Combination 1 would provide about two thirds. Of course there is more to consider, like not taking one day on its own on the one hand, or 35% being liberal on the other, but the figures demonstrate Dr Lobstein's approach. He did not at first seem to allow for the fact that a whole day's eating was still only a part of one's diet, because he referred to 78 grams of fat being the maximum amount of fat which the child should consume for the day. He developed the exercise to say that only 8.2% of the day's vitamin A, 34% of its calcium and 32% of its iron came from Meal Combination 1. In order to eat healthily a child or an adult would have to find an extremely low fat meal, very rich in nutrients to end up with an average daily intake that met government guidelines. However, Dr Lobstein did go on to say that he was not claiming that Meal Combination 1 was eaten every day. If it were, he thought children would be extremely at risk. He said that the point was to show the imbalance. Fat levels were high compared with the low levels of many of the essential nutrients. It was the same for all eight meal combinations. The position was very similar for salt. As a rule of thumb: 40% of salt was sodium. So out of 6g of salt a day, 2.4g was sodium. The WHO recommended 2,400mg of sodium as "being sufficient for a daily intake." Dr Lobstein appeared to treat this as a maximum, because he said that Meal Combination 1 contained 1488mg of sodium which was approximately two-thirds of the maximum recommended by the WHO. (It is 62%, in fact.)
The Defendants' main witness on the first two issues was Prof. Vernon Wheelock. He has a first degree in chemistry and agricultural chemistry. He has a PhD in physiological chemistry. He is Head of the Food Policy Research Unit at the University of Bradford and Special Professor in Food Science at the University of Nottingham. Prof. Wheelock is also the Managing Director of Vernon Wheelock Associates Ltd, consultants in food policy. Since February,1991, he has been engaged to advise the Second Plaintiffs in the U.K. on nutritional issues and they have made changes to some of their products, in line with his advice. About 20% of the income of Prof. Wheelock's company comes from the Second Plaintiff. Prof. Wheelock said that he was happy with the recommendations in COMA 41 because the type of exercise done by the Panel which produced the report had been undertaken many times by efficient bodies in different countries and by committees set up by learned societies, and by and large there was a remarkable degree of consensus on the dietary recommendations that were put forward. A significant part of Prof. Wheelock's evidence was devoted to describing how the second Plaintiff had reduced the total fat, saturated fat and salt content of various food items, yet without losing their distinctive taste, particularly since Prof. Wheelock had begun to advise the company in 1991. McDonald's food still did not come within the recommendations, but there was no reason why every food which everybody ate should come within the recommendations. Prof. Wheelock said that so far as salt was concerned things had moved on since COMA 41 in 1991. There was a growing awareness of the links between dietary sodium and hypertension, and in his view it would be prudent to reduce the daily average for a man of 3376mg, but not below 1600mg. Needs for salt varied from person to person and climate to climate. I believe that COMA 46 may not have been published when he gave his evidence. Prof. Wheelock accepted that there was no question that some meal combinations which a person would have in McDonald's might well come above the proportions of fat, saturated fat and salt recommended
for the total diet; but there was a range of different compositions available. It did depend on what you chose. Ms Steel specifically asked Prof. Wheelock: "A typical meal of cheeseburger, fries and milk shake, would you agree that that was going to be high in fat, saturated fat and sodium?" He answered: "I am pretty sure it would be if I was to do the calculations. You know, we would end up with a fat content which is higher than 35, a saturated fat content which is higher than 10; yes, I do not think there is any question of any argument about that." He was clearly relating McDonald's food to the COMA 41 recommendations for diet in judging whether the meal was "high in" fat and saturated fat, although he did add that there was quite a difference between the average diet and the recommendations which we were trying to achieve. So far as salt was concerned, Prof. Wheelock said that it was virtually impossible to reach the COMA 41 recommendations for sodium with commonly available processed foods, by which he meant foods which people bought to take home. McDonald's food was in line with other processed foods. The concentration of sodium in McDonald's foods was about the same as in a typical British diet. I think that in saying that, when referring to the COMA 41 recommendations, Prof. Wheelock must have had the RNI of 1600mg per day in mind, because the typical British diet, and by Prof. Wheelock's account, therefore, McDonald's food, must have been about the average daily consumption given in the report. So far as fibre content was concerned, Prof. Wheelock said that the concentrations in McDonald's foods were about the same as a typical British diet. The ten McDonald's meals which Prof. Wheelock chose [five children's meals and five adult meals] and then analysed in order to support his view that one McDonald's meal per week or even per day could be assimilated into the diet of a child and adult without adverse effect on the diet so far as intake of fat, saturated fat, extrinsic sugar, fibre and sodium were concerned, showed that the percentage of calories provided by fat varied between 31.3% and 51.4%, most of the meals being in the middle 40s. The percentage of calories provided by saturated fat varied between 15.8% and 25.4%, seven of the ten meals being 20% or over. An adult meal of cheeseburger, regular fries, diet coke and apple pie provided 987mg of sodium which was just over 60% of
COMA 41's RNI of 1600mg and just over a quarter of the national daily average. Prof. Wheelock expressed the opinion that it was not high in sodium. However, the meal chosen was the lowest for sodium of the meals in the Table and Prof. Wheelock expressed this view before he conceded that it was virtually impossible to reach COMA 41 recommendations for sodium with commonly available processed foods. The same meal provided 12.37g of fibre so Prof. Wheelock said that it just crept into the bottom of COMA 41's daily bracket of 12 to 24 grams. In fact this bracket was for NSP, but of course it was only one of the meals in the day. Prof. Wheelock said that the meal was not low in fibre. The above calculations appeared to be done at about the beginning of 1994, and Prof. Wheelock accepted that since 1989/1990 the fat content in McDonald's cheese had been reduced. Salads featured in some of the meals, but they were not available in all McDonald's restaurants. Orange juice was introduced in about 1989. Frying oil was changed from beef tallow to vegetable oil in 1989. There had been a switch from lard to vegetable oil in the buns. Prof. Wheelock said that McDonald's meals were not low in vitamins and minerals. Dr Sidney Annott, whose prime task was to give evidence on the position of diet in the causation of cancer of the breast and bowel, said that he thought the COMA 41 recommendations for daily reference values for total fat and saturated fat were very fair. On the basis of this evidence it seems clear that a number of McDonald's products, including a sufficient number of typical meal combinations, presumably put forward in the Second Plaintiff's own nutritional leaflets because they are typical, have higher concentrations of fat, saturated fat and salt than the levels generally recommended for a healthy diet. Taking fat and saturated fat as an example, the question then arises as to whether those recommendations, made as they were for diets, and not for individual meals, are a valid test of whether a food item or a meal is "high in" one component or "low in" another. In my view they are not only a valid test, but the
appropriate one, in this part of the case, where the concern is for health, the whole scenario is that recommended levels will improve public health, and levels in individual food products or meals can only sensibly be measured against levels to be aimed for in the diet as a whole. An alternative approach would be to take the present average levels in diet in the country where publication is complained of, but in my view that would be absurd in a situation where the national diet is not as healthy as it might be and the whole point of looking at dietary fat levels is to get them down by, for instance, eating less fatty food. The national diet is high in fat and saturated fat so far as health issues are concerned. The approach urged by counsel for the Plaintiffs was to take the COMA daily recommendations and then see how a McDonald's meal fitted into them. If fat intake did not exceed the recommended allowance by weight for the day, the meal could not be said to be "high" in fat. But this did not help me so far as fat was concerned. Food items which were high in fat, salt or sugar, by any other test one could imagine, for example a boiled sweet high in sugar, might come out as "low" by this test. All would depend on the fat content of what one ate for the rest of the day which must logically be irrelevant to the fat level in the McDonald's meal. Using the recommendations for diet as a test of whether a food item or meal is "high in" fat or saturated fat, does not mean that one has lost sight of the fact that the recommendations relate to diet. That is allowed for by the need to go on to ask the further question (part of the second issue): of whether eating McDonald's food which is high in fat and saturated fat might well make your diet high in fat and saturated fat? If I had any doubt about the appropriateness of this test it disappeared when Prof. Wheelock quite clearly accepted the COMA 41 recommended levels for fat and saturated fat in the diet, as the test of whether a meal was high in fat and saturated fat. That was not a "give-away" on his part, in my view. It was no more than good sense. I also find it difficult to see why the Plaintiffs should have taken the trouble to try to reduce the fat content and saturated fat content of some menu items, unless they thought them to be "high" in fat.
In my view the arguments which apply to fat also apply in judging whether McDonald's food or a McDonald's meal is high in animal products or salt (sodium) or sugar, or low in fibre, vitamins and minerals. Where there are clear recommendations for dietary levels in a nutrient or a food component it is appropriate to use those recommendations as the test of what is "high" or "low" in the context of this case. In my judgment if follows from what I have so far said that McDonald's food is "high" in fat which includes a "high" component of saturated fat. In my view McDonald's food is also "high" in salt (sodium) in that a typical meal appears to provide rather more than its share of the recommended daily quantity of salt (sodium) although the position is less clear than with fat and saturated fat where concentrations in the meal can be judged by percentage of calories provided, and the recommendations are more precise. Prof. Wheelock's evidence placing McDonald's food on a par with so much other food in a typical diet, means that, on balance, it is high in salt, judging by the recommendations which clearly involve a reduction in present levels nationally. Sugar is more difficult, and I have not been persuaded to the necessary standard that "McDonald's food is high in sugar." Some food items such a sweet drinks and, no doubt, pies must be high in sugar; and there was evidence that fries were sprayed with a sugar solution for consistent colour. But the predominant part of the fry is still potato. Prof. Wheelock told me that sugar free Coca Cola was popular at McDonald's. The main meal items are savoury rather than sweet. Nothing was really made of the sugar content of McDonald's Meal Combinations. The Defendants spent some time discussing the high sugar content of McDonald's birthday cake without taking any account of how often a customer is likely to eat it. Fibre is most difficult to judge. COMA 41 recommendations related to non-starch polysacchorides, and not fibre as such. The total weight of fibre in a typical U.K. McDonald's 1989 meal of cheeseburger, regular french fries and apple pie was 4.9g which is about 27% of the recommended weight of NSP. By 1993 it was 16.5g or 92% of the recommended weight of NSP. But no one really educated me on the relationship of NSP to dietary fibre. COMA 41 says that "NSP are the major factor of "dietary fibre" whatever definition [of dietary fibre] is used", so it seems reasonable to infer that 4.9g or 16.5g of fibre
contains less than 4.9g or 16.5g of NSP. On this basis I would judge the 1989 meal to be low in fibre, but not necessarily the 1993 meal. There was less fibre in the McDonald's chicken and beef meals analysed by Prof. Crawford's team, but that did not answer the question of whether they were low in fibre in themselves. I do not consider that it was right for Ms Brophy to judge McDonald's food low in fibre because it was low in fruit and vegetables. Potatoes appeared to be excluded from "vegetables", but they contain fibre: so do buns. My conclusion is that on mere balance of probabilities McDonald's food was low in fibre at the relevant time of publication (September,1987, to September,1990,) because a typical McDonald's meal provided only 27% of the recommended daily levels of NSP in fibre even; but it has not been proved that McDonald's food has remained low in fibre since. It has not been proved that "McDonald's food is low in vitamins and minerals." Some foods are clearly lacking in certain vitamins and minerals; but the requirement of certain vitamins and minerals for a healthy diet is very small. They are clearly picked up here and there in a variety of items of food which go together to form one's diet. McDonald's products provide various amounts of some of the necessary vitamins and minerals. Unlike the case of salt (sodium) which I assume to be present in all meals to a greater or lesser extent, I do not consider it accurate to say that a meal or a particular food is "low in vitamins and minerals" just because it does not have its fair share of the full diet's requirement of all vitamins and minerals which are essential to a healthy diet. The evidence on this part of the case was very sparse. The final submissions of counsel for the Plaintiffs included some detailed calculation based on the limited information on the vitamin and mineral content of some McDonald's products. They were designed to show that McDonald's products provided sufficient amounts of some significant vitamins and minerals, but they were not put to witnesses and counsel fairly said that some of them should be treated with caution. The burden of proving that McDonald's food is low in vitamins and minerals lay on the Defendants and, in my view, they did not discharge it. I have no doubt that McDonald's food is fairly to be described as "high in animal products" since so many of the most
often sold products include beef, or chicken, or sausage, or cheese, as well as milk in shakes. I do not need government recommendations to tell me this. In summary I find that at the material time of publication of the leaflet between September,1987, and September 1990, McDonald's food was high in fat (including saturated fat) and salt (sodium) and animal products and that it has continued to be so. I find that it was low in fibre at the material time of publication of the leaflet, but that it has not been proved to be so now . It has not been shown that McDonald's food generally is high in sugar, although some individual items are. It has not been shown that McDonald's food is low in vitamins or minerals. Although I will largely leave sugar behind at this point, I should say that the evidence of any harmful effects of dietary sugar was weak and really limited to the risk of dental caries and, indirectly, to a possible increase in body weight if too much sugar contributed to excessive energy intake. Turning to the second essential issue, the findings which I have just made must mean that it has not been proved that eating McDonald's food more than occasionally might well make your diet high in sugar or low in vitamins or minerals. The issue remains as to whether it is right that eating McDonald's food more than occasionally might well make your diet high in fat, animal products and salt and, when the leaflet was published by the Defendants, low in fibre. The essence of the Defendants' case was that a significant number of people ate McDonald's food which was high in fat, animal products and salt, and low in fibre, often enough to make their diets high in fat, animal products and salt, and low in fibre. The Plaintiffs took issue with this. They said that a typical McDonald's customer would balance McDonald's food with a variety of other foods. Indeed the Plaintiffs asked him to do so. If he did not do so but ate too much other food which was high in fat, animal products and salt and low in fibre, then his diet could not be laid at the door of McDonald's which made a limited contribution to the diet. They contended that even if some people did eat McDonald's food often
enough to make their diets high in fat, animal products and salt (sodium) and low in fibre, however balanced the rest of their meals were, that did not justify the thrust of the leaflet to its ordinary reader who would not be a very heavy McDonald's eater, to the effect that eating McDonald's food more than occasionally might well make his diet high in fat, animal products and salt (sodium) and low in fibre. If the ordinary reader was an ordinary McDonald's customer he would eat there only now and again and what he ate at McDonald's would not affect his diet significantly. There was a lot of evidence on the frequency with which people ate McDonald's food. In my view the relevance of this evidence of "eating frequency" was that if a large proportion of people ate McDonald's food frequently enough to make their diets high in fat, animal products and salt (sodium) and low in fibre, so that it was the norm to do so, then the allegation that eating McDonald's food might well make your diet high in fat, animal products and salt (sodium) though not in my view sugar, and low in fibre, though not in my view vitamins and minerals, would be substantially justified; it would be shown to be true in substance and in fact. On the other hand if only a small proportion of people could be shown to eat McDonald's food frequently enough to make their diets high in fat, animal products and salt (sodium) and low in fibre, so that result would be exceptional, then the allegation would not in my view be justified, because the leaflet does not say if you eat McDonald's food very often it may very well make your diet high in fat, animal products, and salt, or low in fibre. So it was necessary to see what numbers of people, if any, ate frequently enough at McDonald's to make their diets high in fat, animal products and salt, and low in fibre. This involved looking at frequency of eating at McDonald's and at the effect of any given frequency on diet. The main strands of evidence on the second issue were as follows. Dr Lobstein said that there was a lack of balance in the diet of the general population of this country. He said that the imbalance in the diet of the general population, which bodies like Department of Health and
the World Health Organisation were currently concerned with, was a diet with excess fats and sugars, insufficient dietary fibre and insufficient fruit and vegetables and nutrients which were delivered from fruit and vegetables. The McDonald's meal combinations which he examined had much of this imbalance. If such meal combinations were being eaten frequently they would need to be balanced with low-fat, high-nutrient meals to compensate. In his experience this was unlikely to be the case. He thought that for an increasing number of people McDonald's meals represented an increasing part of the diet, and that for some parts of the population it already represented a large part of the diet. The continued promotion of McDonald's meals contributed to the maintenance of unbalanced diets of the kind which the Department of Health and the World Health Organisation warned against. Dr Lobstein referred to evidence that meals such as those promoted by McDonald's were being eaten frequently. Although frequency of eating various types of meal varied between groups of the population, government figures showed what Dr Lobstein described as a "tragic" tendency for younger eaters to be eating large quantities of fast food such as burgers and french fries. The reference for this was Diets of British Schoolchildren, HMSO, 1989, a report of the sub committee on National Surveillance of the Committee on Medical Aspects of Food Policy (COMA 36). In fact the parts of the report to which Dr Lobstein referred said that all the children in the sample consumed large quantities of bread, cakes, biscuits, puddings, milk, meat products, crisps, potatoes and particularly large quantities of chips. This came as no surprise to me. But the reference to fast food turned out to be a reference to 68 out of 513 older boys and 54 out of 461 older girls who took term time lunches out of school at cafes, take-aways and fast food outlets as opposed to eating school lunches or bringing a packed lunch. Approximately a quarter to a third of children had fat intakes contributing more than 40% of their energy intakes. Dr Lobstein thought that the proportion of children eating school lunches had fallen since 1989.
On reflection he thought that his comment about the tragic tendency for younger eaters to be eating large quantities of fast food such as burgers was based on The Food Commission's own survey in Peckham. A market research survey showed fast food to be eaten most often by those aged 15-24, and those young people ate fast food twice as often as people aged 45-64. The authority for this was a British Market Research Bureau/Mintel survey in 1985, but Dr Lobstein no longer had a copy, so I could not see what the actual frequency was. Dr Lobstein did produce a British Nutrition Foundation report "Eating in the Early 80s", published in 1985, which showed 34% of adults eating take-away foods at least once a week and 45% "less often". The highest group eating take-aways at least once a week was 63% of single 16-24s. Over 35s were around 25%. Dr Lobstein thought it important that the BNF report showed that a percentage of children bought hamburgers with their pocket money, but only from 1 to 5% of the sample said that they did so. A survey by the trade association HOTAG (The Hot Takeaway Group) (Consumer Catering Report, 1986) found that 43% of those aged 15-24, 54% of unemployed people and 36% of students ate fast food more than twice a week. That report could no longer be traced. In 1987 a survey by The Food Commission called Grazing in Peckham, a survey of 354 fast food eaters in the London Borough of Southwark, found that 87% of respondents had eaten fast food at least once during the previous week, and 30.5% said that they ate fast food on average once every day. People were questioned as they came out of four fast food stores (a McDonald's, a Wimpy, a Kentucky Fried Chicken and a fish and chip shop) at lunch time and between 3.30 and 5 pm. It was a low income area. Dr Lobstein agreed that the sample might include a number of people who had fallen into the habit of eating fast food at lunchtime, but the point of the survey had been to see if there were "people who were using fast foods at quite high levels of intake." 32% of those coming out of McDonald's said that they ate fast food somewhere once a day, and a further 49% said that they did so more than once but less than five times a week. The average of those coming out of McDonald's
ate fast food 4.21 times a week of which about 2.99 were meals and about 1.23 were snacks. The same point about regular lunches might apply and a school run dropped off there in the afternoon. 30% of the sample thought that their general diet was poor, and nearly 42% thought that the food from fast food outlets was poor, yet they were still eating in that way. Burgers were the most common items eaten by those who ate fast food every day. Dr Lobstein also expressed views on the relationship of diets high in saturated fat and sodium to heart disease, but in my view he was less qualified than the scientific witnesses on this issue. Ms Fiona Winter, then Carruthers, the dietician who carried out the survey "Grazing in Peckham" in 1987, carried out a further survey in 1988 called, "Who is under the Golden Arches?" That survey was carried out in the centre of Leeds. Ms Carruthers was a Dietetic Student in her final year at Leeds Polytechnic at the time. In the discussion at the end of her research report Ms Carruthers very fairly pointed out that the samples of the population used in the study were not wholly representative of fast food eaters. Interviews only took place over the lunchtime period, and the sample profile might have been very different if interviewing was carried out in the evenings. The location of the outlets was also a source of bias. The centre of town was chosen because a range of outlets was found in a small area, offering the greatest choice to the customer. However, the customers using those outlets in town at lunchtime might be very different to those using outlets in a residential area in the evening. Ms Carruthers found that a large proportion of the consumers interviewed in the Leeds study were eating fast food at least weekly, with a quarter of respondents using the outlets daily. This showed that fast food was contributing significantly to the diets of some individuals, in her view. She said that recommendations for nutritional intakes were made for the whole day, so each individual meal need not necessarily be balanced.
Most of the Plaintiffs' evidence on eating frequently was given by Mr Alastair Fairgrieve, the Second Plaintiff's Marketing Services Manager since 1991. For seven years before that he had worked for the Second Plaintiff in store management and marketing. Mr Fairgrieve prepared a number of tables from U.K. marketing research surveys. The first, called "Fast Track" was by Harris Research, based on interviews of about 5,000 people a year. It looked primarily at who McDonald's users were and what they thought of it and its competitors and how opinions shifted. It was cross-checked against the second by Taylor Nelson Market Research, which was based on telephone interviews of about 60,000 people a year for a syndicate of which McDonald's was a major member. Both sets of figures tended to accord with the information which the Second Plaintiff got through its tills. None of the figures included customers up to the age of fifteen. Mr Fairgrieve produced various tables or abstractions from the surveys. His table produced from the results of both surveys showed that zero percent of McDonald's customers visited McDonald's nearly every day, although he knew that some people ate at McDonald's every day. 4% visited several times a week. 11% visited once a week. This meant that 15% were what were described as "heavy eaters", eating McDonald's food once or more a week. Another 37% ate one a month or more. A real margin of error had to be allowed for. Later, Mr Fairgrieve produced another table which showed zero percent eating at McDonald's daily, about 0.18% or about 40,000 customers eating nearly every day, about 1.77% or 385,000 eating several times a week, an additional 8.76% or about 1.9 million eating once a week, and an additional 7 million or about 32.32% eating once a month or more. As part of his final submissions, counsel for the Plaintiffs relied upon figures from the large survey which showed that about 22.5 million people (about 40% of the U.K. population) ate at McDonald's sometime during the year. No discernible percentage of
all customers ate there every day. About 55,000 or 0.24% of all customers ate at McDonald's nearly every day. About 477,000 or 2.1% of all customers ate at McDonald's several times a week. About 2.14 million customers or 9.5% of all customers ate at McDonald's once a week. So something like 12% of McDonald's customers ate there once a week or more. Those figures were in the same broad brackets as Mr Fairgrieve's. The survey figures which I have given did not include McDonald's employees. A survey in 1992 of a sample of the Second Plaintiff's restaurant staff showed that 6% ate a McDonald's meal more than six times a week; 61% four to six times a week, and 31% zero to three times a week. Mr Fairgrieve said that a typical McDonald's customer visited an informal eating place about sixty times a year and about one third of his visits were to McDonald's. In my view this must have been a stab at the canvas with a very broad brush in the light of the figures which I have given. The surest ground was that the heaviest usage group was 16 to 24 followed by 25 to 34. Whichever way one looked at the various use by age group figures, frequency of use fell off quickly once one was out of the 16 to 24 age bracket, and more quickly still once one was out of the 25 to 34 age bracket. By far the most common reason given for visiting McDonald's less often among those who did visit less often was "change of circumstances" which included changes in age, family, work and financial situation. About half the visitors took children to McDonald's with them. Among the attributes of McDonald's mentioned by McDonald's users, "Place Kids Enjoy" came consistently top and "Nutritious Food" was consistently one of the lowest mentions. Economic and social classes were evenly balanced. The number of McDonald's restaurants in the U.S. is considerably greater and
considerably greater in relation to the population. Calculations done by the Plaintiffs' counsel on the basis of a U.S. survey showed children up to thirteen visiting McDonald's about once every three weeks on average for the population. Customers aged fourteen to forty-four visited about once every eleven days to a fortnight, and older people visited more rarely. The U.S. heavy users tended to eat at other quick service restaurants also, which has some consistency with Ms Winter's surveys. I was shown a report prepared in December,1991, for the First Plaintiff. It dealt with use of McDonald's restaurants in the U.S. Its drafting is confusing in parts. For instance it says: "Overall, McDonald's customers are likely to be:...Heavy users (72% visit McDonald's once a week or more)". Later it says: "Nearly three-fourths of McDonald's visits are made by heavy users". This clearly refers to the proportion of visits. This is immediately followed by the statement: "Of these heavy users, about one third are super heavy users". This refers to the proportion of users. It also states: "Nearly 3 out of 4 visits to McDonald's are made by heavy users", and I think that the frequency visit figures which are given must be percentages of visits by categories of users (super heavy, heavy, medium and light) and not percentages of users who fall into those categories. On this basis the report says that 23% of visits in 1991 were made by super heavy uses (visiting 4 or more times a week). 49% of visits were made by heavy users (visiting once to three times a week), thus giving the "nearly-three fourths" (72%) of visits. 23% of visits were made by medium users (once to 3 times a month) and 5% by light users (less than once a month). The figures were broadly the same for the years since 1986. My interpretation of the report is confirmed by a page which states that 22% of all customers visit at least once a week. The figures were 22% for 1986, 25% for 1987 and 27% for 1988. The 22% for 1991 was divided equally (11% and 11% super heavy and heavy users; but I wonder if this is accurate because in 1986, 1987 and 1988 only 4% were super heavy users and the much greater balance (18%, 21% and 23%) were heavy users. However this may be, it appears from the report that at the time of relevant publication of the leaflet complained of about three-quarters of
McDonald's U.S. customers ate its food less than once a week, and that the majority of that three-quarters ate its food less than once a month. The McDonald's U.K. and U.S. surveys were done to help guide their marketing rather than to provide reliable figures on eating frequency, and I have misgivings about the accuracy of the survey figures when turned into hard numbers or percentages of customers eating McDonald's food at certain frequencies. But the Plaintiffs introduced the surveys or abstracts from them to help me get a picture of how often people used McDonald's, so they can at very least be used by the Defendants if they help them. Ms Winter's surveys had biases of their own. The overall picture which I took from the plethora of figures put before me was that in the U.K. where publication of the leaflet is complained of, there was and is a very small proportion of all McDonald's customers eating their food nearly every day; a still very small proportion eating their food more than once a week; about 10% of all McDonald's customers eating their food about once a week and the remainder, probably about 85%, eating their food less often than once a week. There are about 30,000 hourly paid McDonald's restaurant staff in this country so their regular eating at McDonald's does not change the picture if there are over 20 million people using McDonald's. The important gloss on the picture is that there was really no evidence that those who eat McDonald's food once a week or more often do so or have done so for a significant proportion of their lives, or will continue to do so. In the U.S. the proportion of frequent users appears to be greater and heavy use continues into the 35 to 44 age bracket, no doubt because McDonald's has been established there for longer than it has been here, but also no doubt because of slightly different lifestyles. Even then the great majority of McDonald's U.S. customers eat its food less than once a week. Again, however, there was really no evidence as to how long the habitual McDonald's customers have been so. On the general issue of the effects of McDonald's meals on diet, Prof. Wheelock stressed time and again that although recommendations for total fat, saturated fat, salt, vitamin and mineral intakes, where made, were made on a daily basis, it was their effect on diet which mattered so far as health was concerned. If your intake was
in excess of the maximum recommended, or short of the minimum recommended, on one day, you could balance that by eating more or less over the next day or two. In fact Prof. Wheelock said that when looking at diet one was looking at intakes over a week or a month. Prof. Wheelock said that there was nothing wrong with the occasional high fat meal. He provided Tables of meals and analyses with a view to demonstrating how McDonald's food could be eaten quite frequently without adversely affecting the diet. Table 1 took five different but typical McDonald's meals and placed them one by one, once a week, in the diet of a child requiring 2,000 kcal of energy a day or 14,000 per week. The weekly totals came out at just under 14,000 kcal. Tables for each of the days when a hypothetical McDonald's meal was taken came out at around 2,000 kcal. Table 2 took five different but typical McDonald's meals and placed them one by one, once a week, in the diet of an adult requiring 2,500 kcal of energy a day or 17,500 per week. The weekly totals came out at between 17,200 and 17,300 kcal. Tables for each of the days when a hypothetical McDonald's meal was taken came out at around 2,500 kcal. So all those meals could be fitted once a week into the week's diet or once a day into a day's diet without any or any significant excess of calories. Moreover if the adult was a young, active man with a requirement of about 3,000 calories a day, the typical McDonald's meal provided roughly one third of the COMA 41 recommended fat limit and half the recommended saturated fat limit for one day. So, Prof. Wheelock said, it would not be a problem for the young man to accommodate a McDonald's meal into every day, provided that he ate sensible things at other times of the day. The same exercise, however, showed that the child would get almost half its day's allowance of total fat and just over two-thirds of its day's allowance of saturated fat from its McDonald's meal. I have already referred to the calculation which showed the adult taking in 987 of sodium from a typical cheeseburger meal. Prof. Wheelock's conclusion was that he could take in a lot more
sodium before reaching the COMA 41 RNI of 1600mg for the day. His intake from the McDonald's meal was just over a quarter of the national daily average. I have also referred to the similar calculation which showed the adult taking fibre at the bottom of the COMA 41 RNI for NSP for a day, from a typical cheeseburger meal. Prof. Wheelock was cross-examined at some length on his Tables. I have already mentioned changes made to the constituents of some of the meals between the time of relevant publication of the leaflet and his analyses. Prof. Wheelock did not think they made any significant difference to the contribution of one McDonald's meal to the week's diet. If Prof. Wheelock had chosen a woman's daily requirement of about 2000 kcal per day for the adult Table the picture of total weekly intake would be different. Prof. Wheelock produced his schedules of the other meals in each week and in each day of each week, which were taken with the chosen McDonald's meals, to show that total energy intake could be less than 14,000 or 17,500 kcal and around the recommended daily intake, and that the weight of fat and saturated fat and salt and fibre could be within COMA 41 recommended limits. The other meals were challenged as being carefully chosen, with some meals of poached or grilled fish, lots of vegetables, semi-skimmed milk and few fried potatoes, for instance. In my view there was some merit in this criticism, but the other meals were mostly the sort of meals which one might well find in a U.K. home where some real attention was paid to producing a varied diet without much fried food. Prof. Wheelock agreed with Miss Steel's suggestion that as a nutritionist he would advise anyone who ate a McDonald's meal every day that unless they were very careful balancing the rest of their diet they were going to risk their health in the long run. The question was posed and the answer was given in the context of whether a diet high in fat (including saturated fat) and sodium, and low in fibre, was linked with cancers of the breast and bowel and heart disease, but I took Prof. Wheelock's answer to be acceptance that it would be difficult to avoid making one's diet high in fat and sodium, if not low in fibre, if one ate a McDonald's meal every day.
Having considered all the evidence on the point and all the calculations put forward by the Defendants, I find that it is possible to eat a typical McDonald's meal several times a week, without making the diet high in fat (including saturated fat) and salt (sodium) or low in fibre, by the standard of the recommendations which I have applied, provided that one takes a lot of care with the rest of one's meals. If one eats several McDonald's meals a week without taking a lot of care with the rest, one's diet is likely to be high in fat (including saturated fat) and salt (sodium) and it may be low in fibre, and since several meals a week must in my judgment form a significant part of one's diet, the frequent McDonald's meals would bear a real part of the responsibility for that result, for so long, but for so long only, as they continued. On the other hand, if one ate a typical McDonald's meal, high in fat (including saturated fat) and salt (sodium) to the extent which I have found, and low in fibre to some extent in 1989 but not now, just once or twice a week, one would not in my view have to take much trouble with the remainder of one's meals in order to keep to the COMA 41 recommendations. If one ate quite a lot of the same kind of food during the rest of the week, one would be in trouble; but in that case I do not consider that it would be right to hold the one or two McDonald's meals responsible. Whether one's diet was high in fat (including saturated fat) and salt (sodium) and low in fibre would be far too dependant on what one ate for the rest of the week to blame the one or two McDonald's meals for the result. The same obviously applies even more strongly to the effect or lack of effect, of eating McDonald's meals less than once a week. In reaching this view I have taken account of the evidence to which I will come that eating a certain kind of food can be habituating, and thereby affect overall diet. Whatever merit there may be in this if a person falls into the habit of eating fast food virtually every day, I cannot accept that eating a McDonald's meal once or twice a week, or less, can habituate the ordinary person to eating similar food frequently enough to affect his diet adversely. Only a small proportion of those who visit McDonald's in the U.K., and therefore an even smaller proportion of the general public, eats McDonald's food more than once a week. The proportion of those who visit McDonald's in the U.S. more than
once or twice a week appears to be larger, but still small, if one accepts that a fair proportion of the quarter who visit once or more a week must visit once or twice only. In my view it must follow that it is not true to say that eating McDonald's food, albeit more than just occasionally, might well make your diet high in fat, animal products and salt (sodium), let alone sugar, or low in fibre, let alone vitamins and minerals. Such a statement is not justified. It is not true in substance and in fact because it is only true (so far as fat, animal products, salt and fibre are concerned) in relation to a small proportion of people, who eat McDonald's food several times a week. The leaflet does not say that if you eat McDonald's food several times a week it might well make your diet high in fat, animal products and salt (sodium), and low in fibre. It leads the reader to believe that this is to be expected from anything more than the occasional McDonald's meal. It follows that it cannot be right to say that eating McDonald's food more than just occasionally will bring the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result of making your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, even if such a diet carries such a risk. However, in case there is any appeal against the findings which I have just made I will go on to consider whether it has been proved that a diet high in fat (including saturated fat), animal products and salt (sodium), and low in fibre, leads to a very real risk of heart disease or cancer of the breast or cancer of the bowel. Before referring to the main strands of evidence on this question, it is necessary to describe the nature of the scientific studies which bear on the question of diet and its part, if any, in the causation of heart disease or cancer of the breast or bowel, and some of the difficulties which stand in the way of drawing confident conclusions from them. There have been numerous epidemiological studies which include population studies, group studies, case control studies and prospective or cohort studies. There have been experimental studies on animals and in vitro, and to a lesser extent on humans. There have been clinical studies, largely
observations of morbidity in humans. Each of the various kinds of study has its own advantages and disadvantages in the context of the issue here. Population studies, where the incidence of disease and the way of life, including diet, in one country are compared with those of another, are said to have the advantage of clear distinctions for instance in the proportion of energy in the diet provided by fat, but also in other matters such as the amount of total energy intake or the intake of fresh fruit and vegetables, or exercise, or body mass, which may or may not be related to the proportion of energy provided by fat. On the other hand population studies can be criticised as crude, based on food disappearance or food balance figures which may or may not accurately reflect consumption of a particular food; or based on diagnoses or records of disease, which may not be reliable. Case control studies where a group of people who suffer from a disease are compared with a group of people in similar conditions, who do not, may involve groups where differences in diet are narrow, and may involve poor recollection of diet, especially diet some years before. Prospective or cohort studies where as large a number of people as possible are followed for a number of years for a number of factors, including diet, to see who suffers a particular disease, lead to more accurate records of the various factors; but again differences in diet may be small and time spans may be short or they may not cover a potentially relevant time of life, for instance pubity. Animal physiology is different to that of man. The animals may be specially bred for susceptibility to a suspected carcinogen, and doses of the carcinogen may be high, the sooner to achieve results. There are ethical and practical difficulties in the way of what might be the most productive human experiments. One can hardly invite one part of a group to take a diet which is suspected of increasing the risk of disease, and it is difficult to make people change their diets, even for what might be the better. Time scales might have to be long. Quite apart from the arguments about the specific advantages or
disadvantages of one or other type of study, there are problems of assessment which apply to them all. Firstly, the greatest difficulty seems to me to arise from the fact that many so-called degenerative diseases are multifactorial and, as their description as "degenerative" indicates, they develop over a period of time which is often considerable. So a number of factors may have to be in play for a long time before any risk of disease is noticeably increased. This is bound to make identification of the role of a certain kind of diet difficult. Identification of the role of a particular component of a certain kind of diet is even more difficult. If a particular component is causative of disease, is it directly or indirectly so? At what stage or stages of life does the diet have to be of a particular kind or contain a particular component, and for how long? In most studies an important part of the exercise is to allow for non-dietary factors which may "confound" the conclusion. But this may be difficult to do and there may be room for argument as to whether the "confounding factor" is related to the suspect and, if so, to what extent. For instance, let us assume that a high fat diet is suspected of being a risk factor for cancer of the breast: so are early age menarche, late age at birth of first child, low parity (number of children) and late menopause, all features of western society where the incidence of a "western disease" like cancer of the breast is high. But early age of menarche may be related to nutrition in the sense that the better fed a population is the earlier the average age of menarche becomes. Is this due to high fat diets or just "over-nutrition" (high intake of energy/calories generally)? Late age at birth of first child and low parity are social rather than dietary factors. How does one balance their influence? Which category does age at menopause fit into? Secondly, it is not always easy for a lay outsider to have faith in the experts who give evidence or in the experts upon whose work they rely, when the studies are so copious and varied that there is something for everyone, and when faults or perceived faults in the methodology as well as the general nature of studies may provide ample opportunity to "explain away" their apparent conclusions if they are unattractive to the reader. It is clear
to me as a comparative newcomer to the area, that the topic of diet and disease stirs strong feelings. There can be a perfectly human tendency enthusiastically to adopt a point of view and to hold it. Once a stand has been taken, support can always be found and objections explained away. On the other hand the comparative imprecision of some of the science enables a sceptic to say all too easily that an hypothesis is interesting, but not proved. An attractive route to the balance between the points of view of enthusiast and sceptic would be to follow any consensus between the national and international bodies which have given evidence on diet. But much of the guidance is given on the basis that it is possible that a high intake of a certain kind of food may be a causal factor or risk factor in a particular disease, whereas a lesser intake will not cause harm. It is then obvious good sense to recommend its diminution, so the fact of a recommendation may mean no more than "it will do no harm and it may do some good." Thirdly, over all the population or group studies, so far as the issue which I have to decide is concerned (very real risk or not, of actual disease), lies the shadow that even if a particular diet or component of diet can be shown to increase the incidence of a particular disease in a population or group which broadly shares that diet, it may still be difficult to show that people who follow that diet take a very real risk of suffering that disease as a result, as opposed to having a statistical share in a countrywide risk which may be important from the point of view of public health, but minimal or unquantifiable from an individual point of view. Finally, there are clearly important limits to the science of the causes of cancer of the breast and cancer of the bowel in particular. Family history is the greatest epidemiological risk factor for both. But we appear to be a long way from understanding the genetics and the part they play. It may be easy to propound a plausible biochemical mechanism between suspect and disease, but difficult to prove or disprove it to any standard remotely approaching the preponderance of probability in the present state of knowledge. The evidence of Dr Barnard was the high water mark of the Defendant's case on the relationship of diet to heart disease and cancers of the breast and bowel. Dr Barnard said that as a result of their high content of fat and cholesterol
McDonald's products contributed to heart disease, certain forms of cancer, and other diseases. A diet which was high in fat and cholesterol, sodium and sugar, and low in fibre, certain vitamins and minerals, was clearly linked to a high risk of heart disease, cancer and other chronic diseases as well as to a worse prognosis when those diseases arose. The links were causal. Dr Barnard would agree with the conclusions of the 1990 World Health Organisation Report on Diet, Nutrition and the Prevention of Chronic Disease that: "Dietary factors are now known to influence the development of a wide range of chronic diseases, e.g. coronary heart disease, various cancers, hypertension, cerebrovascular disease, and diabetes." He believed that most other physicians would agree with the WHO position. There had been calls for changes in diet including the reduction of fat in diet since a report of the National Cancer Research Council in 1982. So far as heart disease was concerned, Dr Barnard said that common heart disease or atherosclerosis was a disease in which plaques composed of cholesterol, fat, debris, and cells gradually obstructed the arterial passages. Foods that were high in fat and high in cholesterol, such as those served at McDonald's, tended to increase blood (serum) cholesterol levels and to lead to a higher risk of developing heart disease and a higher likelihood of death related to such disease. Research had established that higher cholesterol levels led to a higher risk of heart disease. On average every one percent increase in the amount of blood cholesterol raised the risk of a heart attack by two percent or more. (Lipid Research Clinics, 1984.) Meat-eaters had higher average cholesterol levels than vegetarians, clearly leading to a higher risk of heart disease. (Kestin 1989, Fisher 1986.) Beef, cheese and other animal products contained cholesterol itself and saturated fat, both of which increased serum cholesterol levels. There were 100 milligrams of cholesterol in four ounces of beef. Every 100 milligrams of cholesterol in one's diet added roughly 5mg/dL to the total serum cholesterol level of the average person. The saturated fat in beef and cheese stimulated the liver to make more cholesterol. Meats had fat not only on the outer edge, but also marbled through the lean. Approximately fifty
percent of beef fat was saturated, which was far higher than for vegetable oils. Those who avoided meat products such as those sold at McDonald's had reduced cholesterol levels. The prevalence of ischemic heart disease was markedly reduced in populations which avoided meat. Dr Barnard said that he had looked into hundreds of studies into the links between diet and heart disease and there was a great deal of consistency to the effect that the less fat, the less saturated fat, the less cholesterol and, the less meat and dairy products that one consumed, the lower one's risk of heart disease was likely to be. On 21st July,1990, the medical journal, The Lancet, published research findings of Dr Dean Ornish of the University of California at San Francisco with whom Dr Barnard had worked. The findings showed that heart disease could actually be reversed in 82% of patients using a combined regimen of vegetarian diet along with other lifestyle measures. (Ornish, 1990). But a diet containing lean meat had been demonstrated to make plaques worse over time. (Ornish 1990, Blankenhorn 1987, Brown 1990). In Dr Barnard's view a diet including food products such as those sold at McDonald's could not accomplish this result. It tended to encourage the progression of heart disease. Heart disease was irrefutably connected with high-fat, high cholesterol diets. Foods served at McDonald's were precisely the type of foods which caused heart disease and encouraged its progression. High fat and low fibre diets tended to go together and fibre helped to eliminate cholesterol from the body. Dr Barnard said that hypertension (raised blood pressure) was related both to salt intake and to meat consumption. "There is, quite clearly, a causal link between diets that are high in fat and sodium, and hypertension." One quite obvious and well accepted causal link was that a diet high in fat made obesity more likely. It increased body weight, partly because a diet that was high in fat was high in calories; but that was not the only reason. Dietary fats required almost no chemical conversion in order to be added to the body fat, unlike carbohydrates which required very extensive biochemical change within the body if their calories were going to be stored as body fat.
If two individuals consumed precisely the same number of calories but one was getting those calories predominately from carbohydrates and the other from fat, the one who got the calories from fat would have a greater tendency towards obesity and a higher body weight than the one who was getting precisely the same number of calories but from carbohydrate. According to Dr Barnard, 23% of the calories in carbohydrate are expended simply trying to make fat. In addition, when fat was consumed it had no influence on body metabolism. In other words, fat did not increase the speed with which the cells of the body consumed calories (energy) but carbohydrates did. Sodium had a tendency to hold water and when individuals were on high sodium diets there was a tendency to draw water into the blood vessels raising the pressure of fluid within the blood. When individuals reduced their sodium intake their blood pressure fell. If you increased the sodium intake of someone with hypertension his blood pressure would be driven up further. Hypertension was a serious condition. If you had excessive pressure in your arteries, that pressure accelerated atherosclerosis. When the arteries in the neck, into the head and to the brain were under higher than normal pressure, the likelihood of a haemorrhagic stroke was increased. Hypertension was a well known risk factor for stroke. Turning to cancer, Dr Barnard said that cancer risk was elevated by foods which were high in animal fat, such as those sold at McDonald's. The U.S. National Cancer Institute estimated that more than 30 percent of cancers were linked to foods. He quoted with approval the U.S. Surgeon General's Report on Nutrition and Health published by the U.S. Department of Health and Human Services in 1988, to the effect that: ".....a comparison of populations indicated that death rates for cancers of the breast, colon, and prostate were directly proportional to estimated dietary fat intakes. Estimates varied, but dietary factors accounted for anywhere from 30% to perhaps 60% or, some authorities would say, 70% of cancers." Dr Barnard gave an outline of the evidence for those conclusions. For nearly twenty years epidemiological studies had shown that if you compared many different countries, those with high fat intakes had higher cancer rates. The 1988 report by the U.S.
Surgeon General called this a direct correlation. It was quite striking that there was a very, very high correlation between fat intake and cancer rates. Dr Barnard said that that alone was an association. It did not prove cause and effect, but epidemiologic studies, as well as other kinds of studies , could be refined to give more evidence of what the association might be, and to shed some light on whether the factors might be causal. When given his head to refer to reports or papers to which he attached particular importance Dr Barnard first returned to the Surgeon General's report of 1988. On pages 194 and 195 under the heading "Role of Dietary Fats in Cancer" the report said:
Dr Barnard said that the words "carcinogenesis" (which Dr Barnard described as the beginnings of cancer including the causation of cancer), "cancer promoting role" and "the role of dietary fat in the aetiology" were all references to causation and not simply to association.
"The risk of breast cancer is correlated with total fat consumption in comparisons of countries (Armstrong and Doll,1975; Grey, Pike, and Henderson,1979; Rose, Boyar and Wynder,1986), districts in Japan (Hirayama,1977 and query 1979), and ethnic groups in Hawaii (Kolonel, Hankin et al.,1981). The risk of cancers of the colon and prostate is also correlated with total fat consumption in international comparisons (Armstrong and Doll,1975; Knox,1977; Liu et al.,1979). A worldwide correlation between breast cancer mortality and total fat consumption has been demonstrated (Carroll and Khor,1975)...... Although further epidemiologic study is needed to verify the association between diet and breast cancer and to elucidate its biologic basis, the consistency of the evidence derived from the epidemiologic and animal studies suggests that the association may be causal (Miller,1986). Table .... summarises certain key (although limited) dimensions of the human epidemiologic studies of diet and breast cancer." At first Dr Barnard said that this meant that back in 1988 the Surgeon General was saying that the evidence strongly suggested that the relationship was causal. He agreed, when it was put to him, that the Surgeon General had used the words "may be causal." Dr Barnard did not have any comment on what followed which in fact read:
1987; Herbert and Wynder,1987; Self et al.,1988), they reinforce the need for cautious interpretation and additional study of diet and breast cancer risk." Dr Barnard went through tables in the report, which summarised epidemiological studies where positive or inverse correlations between Total Fat, Animal Fat, Meat, Eggs and Vegetable Fat and Breast Cancer had been found, or where no correlation had been found at all, before saying: "When the studies show a statistical relationship, that is quite important. When they fail to do so, it quite often is an error in method rather than meaning that there is simply no relationship between the two." Dr Barnard would not agree that this put a sceptic in a "no win" situation. He said that a large majority of studies found a positive correlation; there were plausible mechanisms for dietary fat causing cancer, and as the Surgeon General went on to say:
The report's table of epidemiological studies relating to dietary fat and colon cancer showed a large number where an inverse relationship was found between various types of dietary fibre and the incidence of colon cancer. In other words they indicated a protective effect of fibre intake for colon cancer. Dr Barnard attached importance to what had happened in Japan as fat intake grew. He said that if one compared Japan and the United States, Japan historically had quite a low intake of fat, with fat providing as low as seven to ten percent of calories, compared to the United States' average fat intake of about 37 percent of calories. Japan had had a correspondingly low incidence of cancer, breast cancer in particular. However, Japan and the United States differed in many ways, not just in diets but in other aspects of lifestyle. Within Japan itself, where everyone was presumably breathing the same air and drinking the same water and had similar access to medical care and other factors, researchers had looked at dietary factors and their relationship to cancer. They found that higher fat intake was linked and that it went hand in hand with a higher risk of breast cancer.
Researchers had initiated and completed other kinds of studies such as cohort studies. In a cohort study the researcher identified a group of subjects, identified their diet and then followed them prospectively to see their rate of cancer. Dr Barnard went through the abstract of Hirayama's 1978 paper "Epidemiology of Breast Cancer with Special Reference to the Role of Diet" as follows:
Dr Barnard interpreted this as finding associations between fat and cancer, particularly meat intake and cancer, but with a doubt as to whether animal fat operated directly or was mediated by obesity. Increase in body weight did not necessarily involve obesity. The subjects had a tendency to be larger in size and a greater proportion of them were obese. In Dr Barnard's view Hirayama's work eliminated genetic factors from consideration for those changes. There
was a role for genetics in breast cancer. However, when you had a population that had remained the same and their cancer rate had gone up rather dramatically, yet their DNA had not undergone some massive change, one had to presume that there was an environmental factor, and the key one seemed to be fat. Studies were also done by Kolonel in Hawaii showing that with the same geographic area, where again one would have similar exposure to carcinogens and pollutants, again a high fat intake was linked with a high rate of breast cancer. Migrant studies had also shown the same sort of thing; that people who changed from one geographical location to another quite quickly adopted the diets of their newly adopted land and tended to assume the risk of breast cancer of that area. Dr Barnard particularly relied upon a 1989 paper of Toniolo and others on "Calorie-Providing Nutrients and Risk of Breast Cancer." The abstract read:
Dr Barnard said that a "95% confidence interval 1.9-4.7" meant that the chances were that 95 times out of 100 the true
value was somewhere between 1.9 and 4.7 higher risk. The paper suggested that the women who were in the highest fifth of the group of consumption of saturated fat and animal proteins had three times the risk of breast cancer. Women on a lower fat diet had substantially less risk. If those on high fat diets reduced their fat intake "there is an expectation there may be a reduction in subsequent breast cancer risk." Dr Barnard said that an additional line of evidence linking fat and breast cancer was the fact that there was very clear cut evidence of mechanisms by which fat influenced cancer risk. A high fat diet and a diet that was low in fibre, because the two tended to vary inversely, increased oestrogen levels in a woman's body. Oestrogen levels that were higher were clearly and unquestionably linked to a higher rate of breast cancer. The breast cells were responsive to oestrogens. So, when a high fat diet elevated oestrogen levels, this was believed to be at least one important mechanism for increasing the risk of breast cancer. In addition, a high fat diet encouraged obesity by the fat laying mechanism which Dr Barnard described in relation to obesity and hypertension. Adipose (fat) tissue increased oestrogen levels in the body because the fat allowed the production of oestrogen. Thus a high fat diet increased the risk of breast cancer. The relationship between the two was causal. National Cancer Institute books on cancer stated that if fat intake was dropped from the current American average of about 37% of calories, to 20%, that could be expected to lead to a 17% reduction in oestrogen levels, and that was believed to be at least one mechanism by which a low fat diet could be protective against breast cancer. When Dr Barnard spoke of "obesity" in relation to hypertension and breast cancer, it was not always clear whether he used the word in the medical sense of being grossly overweight or in the lay sense of overweight. I learned from other evidence that there is a standard calculation of "body mass index" which involves dividing weight in kilograms by the square of height in metres. 25 and over is "overweight." 30 and over is "obese." So a man who is 1.83m (6 feet) tall becomes "overweight" at about 84 kilos (13st 3lbs or 185 lbs), but he does not become "obese" until he reaches
about 100 kilos (15st 10lbs or 220lbs), if my arithmetic is correct. For a woman who is 1.6m (5ft 3ins) tall the equivalents would be 64 kilos (10st or 140lbs) and 77 kilos (12st 2lbs or 170lbs). Dr Barnard said that the age of menarche was a risk factor in breast cancer; the earlier the age of menarche, the higher the risk of breast cancer. As the fat content of the diet had increased and the fibre content had decreased in many western countries, the age of menarche had dropped. The same was true of Japan. Ear |