Hohenberg v. Ferrero USA, Inc

Filing 59

SUPPLEMENTAL DOCUMENT re 56 Supplemental Briefing: Exhibit 2 to the Corrected Declaration of Gregory S. Weston in Support of Motion for Class Certification (Attachment 1 to Document 56) by Athena Hohenberg, Laura Rude-Barbato. (Fitzgerald, John) Modified on 8/16/2011 to clarify text; no certificate of service attached; supplemental documents require leave of court (lao).

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Confidential Page 1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 NO. 3:11 CV 00205 H CAB 4 5 6 IN RE FERRERO LITIGATION ________________________ 7 8 9 10 11 12 VIDEOTAPED DEPOSITION OF CONNIE EVERS 13 C O N F I D E N T I A L 14 Taken in behalf of Plaintiffs 15 Tuesday, July 26, 2011 16 17 18 19 20 21 22 23 24 25 TSG JOB NO. 39549 TSG Reporting - Worldwide (877)-702-9580 Confidential Page 2 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEW JERSEY 3 TRENTON DIVISION 4 5 MARNIE GLOVER, individually 6 and on behalf of all others 7 similarly situated, 8 9 10 11 Plaintiff, v. No. 11 CV 01086 FERRERO USA, INC., Defendant. 12 13 14 15 VIDEOTAPED DEPOSITION OF CONNIE EVERS 16 C O N F I D E N T I A L 17 Taken in behalf of Plaintiffs 18 Tuesday, July 26, 2011 19 20 21 22 23 24 25 TSG Reporting - Worldwide (877)-702-9580 Confidential Page 3 1 BE IT REMEMBERED THAT, pursuant to the Federal 2 Rules of Civil Procedure, the deposition of CONNIE 3 EVERS was taken before Marilynn T. Hoover, a Certified 4 Shorthand Reporter in Oregon, Washington, and 5 California; on Tuesday, July 26, 2011, commencing at 6 the hour of 9:08 A.M.; at STOLL BERNE P.C., 209 S.W. 7 Oak Street, Suite 500, in Portland, Oregon. 8 9 THE WESTON FIRM 10 BY MR. JACK FITZGERALD 11 888 Turquoise Street 12 San Diego, California 92109 13 On behalf of Plaintiffs 14 15 16 17 DAVIS & TALIAFERRO 18 BY MR. GREG DAVIS 19 7031 Halcyon Park Drive 20 Montgomery, Alabama 36117 21 On behalf of Plaintiff Glover 22 23 24 25 VIDEOGRAPHERS: Ms. Anna Austin, Mr. Mick Irwin TSG Reporting - Worldwide (877)-702-9580 Confidential Page 4 1 2 APPEARANCES (CONT.) SCOTT & SCOTT 3 BY MS. JUDY SCOLNICK 4 500 5th Avenue, 40th Floor 5 New York, New York 10110 6 On behalf of Plaintiff Glover 7 8 9 10 WILSON SONSINI GOODRICH & ROSATI 11 BY MS. COLLEEN BAL 12 650 Page Mill Road 13 Palo Alto, California 94304 14 On behalf of Ferrero 15 16 17 18 FERRERO USA, INC. 19 BY MS. BETH M. KOTRAN 20 600 Cottontail Lane 21 Somerset, New Jersey 08873 22 On behalf of Ferrero USA Inc. 23 24 25 TSG Reporting - Worldwide (877)-702-9580 Confidential Page 30 1 A. No. 2 Q. You've provided nutrition consulting 3 services to Bagel Bites; is that right? 4 A. I am currently. 5 Q. Currently doing that. 6 Who's the company that makes Bagel Bites? 7 A. Heinz. 8 Q. Heinz. 9 Thank you. And you've also provided nutrition consulting services to Nesquik, haven't you? 10 A. Yes, I have. 11 Q. And to Kellogg's? 12 A. Kellogg's, not directly. 13 I have worked on a school curriculum that was non product related. 14 Q. That was sponsored by Kellogg's? 15 A. Yes. 16 Q. And you've also provided nutrition 17 consulting services to Nestlé; is that right? 18 A. Yes. 19 Q. And to Ferrero, obviously 20 A. Yes. 21 Q. 22 Other than the ones I've listed, have you for Nutella? 23 provided nutrition consulting services for any other 24 processed foods or processed food companies? 25 A. Please define TSG Reporting - Worldwide (877)-702-9580 Confidential Page 31 1 2 MR. SHORR: MR. FITZGERALD: evidence? MR. SHORR: 6 MR. FITZGERALD: 10 11 Yeah. Okay. I'll rephrase the question. 8 9 Assuming something not in Was that the objection? 5 7 Object as assuming something not in evidence. 3 4 Object. Q. Bites BY MR. FITZGERALD: Have Other than Bagel Actually, strike that. Have you also provided nutrition consulting services for Nesquik? 12 A. Yes. 13 Q. Is that a Nestlé brand? 14 A. Yes. 15 Q. Okay. So other than the Bagel Bites, the 16 Nesquik, the Kellogg's, the Nestlé, and the Nutella, 17 have you provided nutrition consulting services for 18 any other processed food product? 19 MR. SHORR: 20 THE WITNESS: 21 22 23 24 25 Same objections. What is a processed food product? Define that, please. Q. BY MR. FITZGERALD: Do you have an understanding of what processed food is? A. No. processed food. There is no legal definition of a Milk could be considered a processed TSG Reporting - Worldwide (877)-702-9580 Confidential Page 32 1 food because it undergoes processing. Orange juice 2 could be considered a processed food. I need further 3 definition. 4 Q. What other companies have you provided 5 nutrition consulting services for, that made products 6 that you could buy in a grocery store? 7 A. Thank you. I have consulted for a number of 8 commodity groups, including the National Dairy 9 Council, and several 10 many, many produce organizations. 11 Q. Was that "many" or "mini"? 12 A. Many different types of fruits, vegetables, 13 nuts. 14 Q. Like the kiwis or oranges is an example? 15 A. Is an example. 16 17 smoothies. Q. Chiquita fresh fruit A number of products. Other than providing nutrition consulting 18 services as we've just discussed, what other sources 19 of income do you have? 20 A. I own a publishing company. I speak. I 21 work with government, I work with education, I work 22 with nonprofits, I work developing curriculum. 23 write a lot of curriculum for various agencies, 24 including nonprofits, industry, government, education. 25 Q. Okay. I And do you do all of those services TSG Reporting - Worldwide (877)-702-9580 Confidential Page 94 1 relation services for client and client's breakfast 2 messaging, the program, in support of Nutella hazelnut 3 spread, the product," slash, "service." 4 that? Do you see 5 A. Yes. 6 Q. What did you understand the program to 7 entail? 8 A. The program entailed a series of events 9 targeted at moms, that involved the same messaging, 10 which was the importance of breakfast for children, 11 the importance of using Nutella in moderate amounts on 12 nutrient rich foods, especially whole grains, and the 13 moderation portion control message, and that we would 14 do that in a variety of venues and ways. 15 16 Q. Okay. Is there any internal code name or project name for this new advertising campaign? 17 A. Not to my knowledge. 18 Q. You just called it "breakfast messaging" or 19 something like that? 20 A. I don't recall. 21 Q. Don't recall giving it a short name? 22 A. No. 23 Q. Okay. A. No. 24 25 You never had to sort of refer to it as a TSG Reporting - Worldwide (877)-702-9580 Confidential Page 98 1 3 9 11 10 6 "9 " " " " ll f " 9 11 50 13 ld l 1 17 d l d l 19 ll d " 22 l ll l f f m f ll d " l " " 2 TSG Reporting - Worldwide (877)-702-9580 ll Confidential Page 99 1 ll l 3 ll l f d l l ll l 6 ll " ll " 9 f l 11 l ll l l l ' 1 18 l Q. Okay. Did you ever promote Nutella without 19 disclosing to the public or consumers that you were 20 connected with Nutella as its spokesperson? 21 A. There was one time. 22 Q. When was that? 23 A. It was on an appearance that I was doing 24 I was asked to do on my local TV station, a non paid 25 appearance on A.M. Northwest, and I was asked to talk TSG Reporting - Worldwide (877)-702-9580 Confidential Page 100 1 about breakfast. 2 on breakfast, and I, on my own, decided to feature 3 both. 4 if I could do this. 5 one of them I had light cream cheese with strawberries 6 and one of them I had Nutella with slices of banana, 7 and it was just part 8 It was a non paid segment. 9 that time; that would be the one case. 10 And I did a very editorial segment I had two toaster waffles Q. Okay. and I asked MS&L And I had two toaster waffles, and I had a number of items. So I did not disclose at So you only you only disclose your 11 relationship when you're being paid to promote the 12 product; is that right? 13 14 A. It just didn't seem necessary, because it was part of an editorial segment. 15 Q. Okay. f 17 d 13 l l l f 19 ll l l l f ' 22 l l TSG Reporting - Worldwide (877)-702-9580 f Confidential Page 113 1 segment. 2 3 Q. Okay. And has Ferrero conveyed the messaging on television? 4 MS. BAL: 5 MR. SHORR: 6 THE WITNESS: 7 8 9 Fer Objection. Calls for speculation. Same objection. I don't know that Fer you know, you would have to ask Ferrero. Q. BY MR. FITZGERALD: Are you familiar with commercials for Nutella? 10 A. Yes. 11 Q. Okay. 12 A. Yes. 13 Q. And are those commercials that Ferrero 14 produced? 15 A. Yes, they are. 16 Q. Okay. And so when I ask if Ferrero promoted 17 the messaging on television, you have an understanding 18 of that, don't you? 19 A. Yes. 20 Q. Okay. 21 22 23 Yes. And where on television has Ferrero promoted that messaging? MS. BAL: Objection. Vague and ambiguous. for speculation. Calls 24 MR. SHORR: 25 THE WITNESS: Same objection. You can answer. TV commercials. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 114 1 Q. 2 commercials? BY MR. FITZGERALD: 3 MS. BAL: 4 MR. SHORR: 5 THE WITNESS: 6 7 Okay. How many TV Same objections. Same objection. My knowledge is that there are currently two TV commercials. Q. BY MR. FITZGERALD: Okay. And over the 8 course of the this advertising campaign, how many 9 commercials has Ferrero run, in total? 10 MR. SHORR: 11 MS. BAL: 12 THE WITNESS: 13 Q. 14 15 Same objection. Same. I'm not sure. BY MR. FITZGERALD: Are you aware of a third commercial that was run for some time? A. I believe My recollection is that when I 16 first came on, there was a commercial, and my 17 recollection is that there were two additional 18 commercials. 19 Q. 20 The two additional commercials, were those produced after you signed on? 21 MS. BAL: 22 Q. BY MR. FITZGERALD: 23 A. I'm I don't know when they were produced. 24 Q. Okay. Did they start airing after you 25 Objection. Calls for speculation. If you know. signed on? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 115 1 MS. BAL: 2 THE WITNESS: 3 Q. 4 Same objection. As I recall, yes. BY MR. FITZGERALD: And the first commercial was airing before you signed on; is that right? 5 A. I believe so. 6 Q. Okay. How come the first commercial is no 7 longer airing now? 8 MS. BAL: 9 Calls for Objection. Calls for speculation. 10 MR. SHORR: 11 THE WITNESS: 12 MR. FITZGERALD: 13 Q. Same objection. I have no idea. I'll withdraw the question. BY MR. FITZGERALD: Do you have an 14 understanding of why the first commercial is not being 15 aired now? 16 A. No. And can I just say that, as a 17 spokesperson, I have absolutely nothing to do with 18 advertising. 19 functions I have nothing to do with advertising; it's 20 not in my contract, and I don't know. 21 22 Q. Advertising and public relations are two Okay. Have you ever discussed the television commercial with Ferrero? 23 A. I have viewed the commercials with Ferrero. 24 Q. Have you opined on them? 25 A. I believe so. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 116 1 Q. Is the messaging in the commercials 2 consistent with the messaging that you were hired to 3 promote? 4 A. I don't know. 5 (Pause.) 6 THE WITNESS: 7 MR. SHORR: 8 THE WITNESS: 9 MR. SHORR: Can I speak with you? We can take a short break. Take a short break. Well, let's just take this off. 10 THE WITNESS: 11 THE VIDEOGRAPHER: 12 15 16 The time is 11:24, and we're off the record. 13 14 Okay. (Recess.) THE VIDEOGRAPHER: The time is 11:26, and we're back on the record. Q. BY MR. FITZGERALD: Ms. Evers, now that 17 you've had a chance to consult with your counsel, I'm 18 going to ask my question again. 19 20 Is the messaging in the commercials consistent with the messaging that you were hired to promote? 21 A. I don't know. 22 Q. Do you have an opinion about whether it's 23 consistent? 24 A. 25 MS. BAL: The message that Objection. The question is vague and TSG Reporting - Worldwide (877)-702-9580 Confidential Page 117 1 2 ambiguous. THE WITNESS: Nutella is a tool for getting 3 your kids to eat breakfast on a busy morning, that 4 specific message is consistent. 5 Q. BY MR. FITZGERALD: Okay. Are Do you 6 have an opinion as to whether there are messages in 7 commercials, which are inconsistent with the messaging 8 that you were hired to promote? 9 MS. BAL: Objection. 10 THE WITNESS: 11 MS. BAL: Vague and ambiguous. No. Just give me one second to object, just 12 if you can pause. 13 THE WITNESS: 14 MS. BAL: 15 Q. Okay. Sorry. Thanks. BY MR. FITZGERALD: To clarify your answer: 16 Is it you have no opinion as to whether there are 17 messages that are inconsistent, or that there are no 18 messages that are inconsistent? 19 A. I have no opinion. 20 Q. Okay. 21 Is the messaging you were hired to promote also conveyed on Nutella's label? 22 MS. BAL: 23 THE WITNESS: 24 Q. 25 Objection. Vague and ambiguous. Yes. BY MR. FITZGERALD: Was it ever conveyed on posters? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 118 1 A. 2 poster. 3 Q. Would you be more specific regarding a Well, we'll get to it later. I think 4 there's an e mail where you said something about 5 about bringing Nutella posters with you, maybe, to an 6 event. Does that refresh your recollection? 7 A. Yes. 8 Q. Okay. 9 So the messaging was conveyed on posters as well? 10 A. Yes. 11 Q. Okay. 12 Do you have those posters in your possession? 13 A. No. 14 Q. Was the messaging conveyed in print 15 magazines? 16 A. Yes. 17 Q. Which magazines? 18 A. I recall Working Mother and I recall a nurse 19 practitioner magazine. 20 those are just the two I recall. 21 22 23 Q. And there could be others; And in what form was it promoted in Working Mothers? A. It was an advertorial that I wrote, that I 24 wrote with the MS&L team, we wrote together, and 25 facing an advertisement. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 125 1 A. Okay. 2 Q. But it is verbatim off the Web site. 3 A. Okay. 4 Q. I'll represent that to you. 5 A. I wanted that clarification. 6 Q. Okay. Okay. Thank you. Thank you. Looking at the first page 7 here, you see at the bottom it has an address, it's 8 NutellaUSA.com/about.htm? 9 A. Yes. 10 Q. And there's a little paragraph here about 11 Nutella? 12 A. Um hum. 13 Q. What on here constitutes the breakfast 14 15 messaging that you were hired to promote, if anything? A. I did not write this page; but having said 16 that, it talks about whole wheat bread and it talks 17 about breakfast and it also has the combination of 18 orange juice or skim milk is a good combination for a 19 balanced breakfast that the entire family will enjoy. 20 Q. Okay. 21 A. Those 22 23 Those would be the points that I'm involved with. Q. Okay. So this first sentence, where it 24 says, "Nutella is a tasty hazelnut spread that 25 contains quality ingredients such as skim milk and a TSG Reporting - Worldwide (877)-702-9580 Confidential Page 126 1 hint of cocoa," that's not a message that you were 2 hired to promote? 3 A. No. 4 Q. Okay. And then the last sentence, that 5 says, "Nutella contains no artificial colors or 6 preservatives," that's also not a message you were 7 hired to promote? 8 9 A. No. If someone asked a question regarding those things, I would give information; but those were 10 not the messages that I was hired to promote. 11 Correct. 12 Q. Okay. The second sentence, which reads, 13 "Nutella, spread on whole wheat bread or any 14 multi grain product, with orange juice or skim milk, 15 is a good combination for a balanced breakfast that 16 the entire family will enjoy," that's consistent with 17 the message you were hired to promote? 18 A. It's consistent. I didn't write that, but 19 that's consistent with the messaging that I was hired 20 to promote. 21 22 23 Q. Okay. Is there anything about that wording that you would change? A. Just looking at it as an editor right now, I 24 would probably say "whole grain" as opposed to 25 "multi grain," because "multi grain" can be a TSG Reporting - Worldwide (877)-702-9580 Confidential Page 127 1 confusing word. 2 Q. Okay. 3 A. No. 4 Q. You see where it says: 5 Anything else? "Is a good combination for a balanced breakfast"? 6 A. Yes. 7 Q. What does "good combination" mean? 8 A. A good combination for a balanced breakfast 9 would include protein, carbohydrate, and fat; and I 10 always recommend a whole grain, a fruit or vegetable, 11 and a protein source. 12 13 Q. 16 So in order Are you I'm sorry. I didn't want to interrupt you. 14 15 Okay. A. Yeah, including protein, carbohydrate, and Q. Okay. fat. So the definition of a "good 17 combination for a balanced breakfast" is any breakfast 18 that includes a carbohydrate, a protein, and a fat? 19 A. No. 20 Q. Okay. 21 A. Okay. 22 Q. 23 A. Can you clarify how I misspoke? Okay. A balanced breakfast has the correct 24 ratio of carbohydrate, protein, and fat; but in terms 25 of food, it includes a whole grain, it includes a TSG Reporting - Worldwide (877)-702-9580 Confidential Page 128 1 fruit or a vegetable, and it includes a protein 2 source, which also has 3 a source of fat, as well as carbohydrate and protein. 4 somewhere in there, there's So I guess what's confusing you know, as a 5 nutrition educator, we can talk about nutrients, and 6 that doesn't mean a lot to people. 7 do is I'm trying to translate for you, when I say 8 "protein, carbohydrate, and fat," into a specific food 9 pattern that would constitute a balanced breakfast. 10 Q. Okay. What I'm trying to And the phrase "good combination," 11 specifically, what does that mean to you, "good 12 combination"? 13 14 15 A. That says to me that that is that appropriate combination that I just outlined. Q. Okay. And so if some foods together are a 16 good combination for a balanced breakfast, that means 17 that that breakfast would be healthy, then; right? 18 19 A. It means that the breakfast overall would be balanced and would provide nutrients 20 Q. 21 A. 22 Q. 23 Okay. would contribute nutrients. Okay. Does it also mean the breakfast would be healthy? 24 A. "Healthy" has no legal definition. 25 Q. And as in your role as a registered TSG Reporting - Worldwide (877)-702-9580 Confidential Page 131 1 provides the correct ratio of protein, carbs, and fat, 2 a healthy breakfast? 3 4 5 MS. BAL: Objection. Vague and ambiguous. Incomplete hypothetical. THE WITNESS: A healthy breakfast would include a 6 whole grain, a fruit or vegetable, and a protein 7 source, along with optimal amounts of protein, 8 carbohydrate, and fat. 9 10 11 12 MR. FITZGERALD: THE WITNESS: That is a healthy breakfast. Okay. And please note that I would include that whole statement, not part of it. Q. BY MR. FITZGERALD: The breakfast described 13 here, "Nutella spread on whole wheat bread, with 14 orange juice or skim milk," is that a healthy 15 breakfast? 16 17 18 19 20 21 A. That would meet the criteria for a healthy breakfast. Q. Okay. Would you tell consumers that that's a healthy breakfast? A. I would say that the breakfast in totality would be a healthy breakfast if 22 Q. 23 problem 24 A. 25 Q. Okay. So that's not you wouldn't have a if it is in all the proper proportions. Okay. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 132 1 2 A. You know, if it's a carton of orange juice and two drops of milk... 3 Q. Right. 4 A. In the proper proportions, those foods can 5 comprise a healthy breakfast. 6 7 Q. Okay. It doesn't talk about the proper proportion here, does it? 8 A. Not here. 9 Q. These These other representations, the 10 first 11 sentence, that you earlier testified were not the 12 messaging that you were hired to promote specifically, 13 did you have an understanding of those messages being 14 used to promote Nutella, before you were hired on? the first para 15 MS. BAL: 16 MR. FITZGERALD: 17 18 question. Q. sentence and the last I'll Objection. That's That's an inartful I'll rephrase it. BY MR. FITZGERALD: Before you were hired, 19 had you ever heard that Nutella is a tasty hazelnut 20 spread that contains quality ingredients such as skim 21 milk and a hint of cocoa? 22 A. No. 23 Q. No? Before you were hired on, had you ever 24 heard that Nutella contains no artificial colors or 25 preservatives? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 141 1 A. Yes, I do. 2 Q. Is this a statement you agree with? 3 A. Generally, yes. 4 5 6 (Reporter request.) MS. BAL: I just wanted to clarify which statement you're referring to. 7 MR. FITZGERALD: 8 Q. 9 Okay. BY MR. FITZGERALD: The whole paragraph. This whole paragraph, do you agree with? 10 A. Generally. 11 Q. Okay. What is the quantity of an eating 12 pattern? 13 is to eat a wide variety of foods and monitor the 14 quantity and frequency of your eating patterns"? Do you see the last sentence says: 15 A. Quantity refers to how much you eat. 16 Q. Okay. "The key 17 18 19 20 21 Just the amount of food calories overall? A. Right. The amount of foods, the amount of nutrients. Q. Okay. Directing your attention to plaintiffs' Exhibit No. 33. This is the article. 22 Would you take a moment to review that, please 23 A. 24 Q. 25 A. Okay. and let me know when you've had a chance. Yes. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 142 1 Q. Have you seen this document before? 2 A. Yes, I did. 3 Q. And what is it? 4 A. A reporter interviewed me for this. 5 Q. It's an online article? 6 A. Yes. 7 8 9 Um hum. It's an online article that I was interviewed for. Q. Okay. And that's at parentsconnect.com; is that right? 10 A. Yes. 11 Q. And is that a Web site that's owned by 12 Nickelodeon? 13 A. That's correct. 14 Q. Do you see on the first page Um hum. The title of 15 this article is "Perfect snacks to stock up on for a 16 trip"; right? 17 A. Correct. 18 Q. Do you see on the first page it says 19 last sentence says: 20 snacks suggested by registered dietitians, Keri 21 the Glassman and Connie Evers"? "Here are some easy to pack 22 A. Right. 23 Q. Who is Keri Glassman? 24 A. I don't know. 25 Q. So you didn't work with her on this article? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 143 1 2 A. No. It was whoever wrote the article interviewed us both. 3 Q. Separately? 4 A. Yes. 5 Q. Okay. You had just reviewed this. You saw 6 that there were ten perfect snacks to stock up on for 7 a trip? 8 A. 9 Right. Again, I did not write this; I was interviewed for this. 10 Q. Okay. Which are the snacks that you 11 contributed to for the interview, as opposed to 12 Ms. Glassman? 13 A. I don't completely remember, but I do 14 believe that the oatmeal packets 15 Because I always carry oatmeal packets. 16 likely I talked about chocolate milk. 17 that I talked about trail mix. 18 hummus. 19 I didn't 20 me. 21 this. I I'm not sure. It's very And it says I'm not sure on I mentioned nut butters, including Nutella. She did not submit this for approval to Had she, I would have probably maybe reworded 22 Q. Okay. 23 A. When you give an interview to a reporter, 24 oftentimes it's out of your control what they actually 25 say. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 144 1 Q. Okay. 2 A. Okay. 3 Q. Let's just 4 I'll ask you some questions about it. Let's just finish what we're doing. 5 A. 6 cheese. 7 and Cuties California mandarins were probably me, I'm 8 speculating. 9 Q. 10 I don't know about pudding. I I don't recall you know, I honestly don't, unless What's the purpose of the Nickelodeon Parents Connect Web site? 11 A. I do not know. 12 Q. And how did this article come about? 13 A. A reporter called me or e mailed me. 14 Q. Just a cold call? 15 A. E mailed or called me. 16 Q. Just like a cold caller? 17 A cold e mail, just out of the blue? 18 A. Right. I get those all the time. 19 Q. Right. All right. Directing your attention 20 to the Nutella slide, which is slide number 7. 21 you review the copy before it was printed? Did 22 A. No, I did not. 23 Q. As the copy appears here on this page, do 24 25 you believe that it's complete, accurate, and fair? A. No. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 145 1 Q. Why not? 2 A. Because I don't 3 I think that it is not accurately portrayed. 4 Q. In what respect? 5 A. It says "all natural." "Natural" is not 6 really something that's defined. 7 claim to me, so I would not have ever said that. 8 would never have said "good for you dip." 9 Those are not my words. And it sounds like a I That is 10 Q. Anything else? 11 A. The only thing that I recognize is that I 12 mentioned crackers and pretzels. 13 don't think I even mentioned pretzels. 14 said was "whole grain crackers," to my best 15 recollection. Actually, I I I think what I 16 Q. Okay. 17 A. It was a phone interview. 18 Q. And the reason you don't think you said And so 19 pretzels is because pretzels would be inconsistent 20 with the whole grain messaging? 21 A. Right. Pretzels are just real 22 whole grain in them; they're just a refined 23 carbohydrate. 24 about. there's no 25 Q. It's not something I usually talk Okay. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 146 1 A. It's not something I usually recommend, and 2 I always recommend Nutella in conjunction with a whole 3 grain. 4 So my opinion is that the reporter took great 5 liberty, and she may have even gone and gotten 6 information in other sources; but it wasn't sourced 7 from me, other than I did mention Nutella as I was 8 mentioning a whole slew of items. 9 10 Q. Okay. Was Ferrero aware that this article would be published, before it was published? 11 MS. BAL: 12 THE WITNESS: Objection. Calls for speculation. My recollection is that I sent it 13 to Elise, once I became aware of it. 14 sure, because I don't even know when this happened. 15 When was this published? 16 articles. 17 Q. But I'm not That's a problem with Web BY MR. FITZGERALD: Yeah, I don't really see 18 a date either; but, you know, I have an e mail that 19 may help to put it in context, that we can look at. 20 21 A. Okay. Yes, I did, at some point, I recall, share it with Elise Titan. 22 Q. 23 hummus? 24 A. No. 25 Q. So when it said, "If your kids aren't hummus Okay. Is Nutella a good substitute for TSG Reporting - Worldwide (877)-702-9580 Confidential Page 147 1 fans, stash a container of Nutella in your room," you 2 wouldn't agree with that? 3 A. No. 4 Q. And Nutella is not all natural, because it 5 6 I didn't give that information. contains vanillin; correct? A. Correct. And "all natural" is something 7 that has no legal definition either; it's not 8 something that I would use to describe it. 9 10 11 12 13 14 15 16 As I said, I probably mentioned the product. The reporter took great liberties. Q. Okay. Does "balanced breakfast" have a legal definition? A. Not to my knowledge other than, I would say, it has an accepted definition in terms of USDA. Q. Okay. As what you defined before, the proper proportions and so forth? 17 A. 18 MR. SHORR: 19 Q. BY MR. FITZGERALD: 20 A. Yes. 21 Q. Yes. (Nods head.) Say yes. That's a yes? And then where it says that it's "good 22 for you," that was something you said that you 23 wouldn't 24 right? 25 A. you wouldn't have put in there either; No. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 148 1 Q. And why is that? 2 A. Because, on its own, it is not. 3 Q. It's not good for you? 4 A. I always talk about it in combination, as a 5 tool, as a vehicle, to eat the whole grains. 6 Q. Okay. 7 A. So on its own. 8 Q. So Nutella, on its own, is not good for you? 9 A. Nutella, on its own, does contribute So Nutella 10 nutrients as well, but I would not classify it as a 11 I would not make a nutrition or a health claim about 12 it; but the fact of the matter is, Nutella does 13 contribute nutrients. 14 Q. Well, that's true of every food, isn't it? 15 A. No. 16 Q. What foods don't contribute nutrients? 17 A. I would say that sugared beverages. 18 Q. Aren't sugars carbohydrates, and aren't 19 20 carbohydrates nutrients? A. Refined carbohydrates, yes; but that is a 21 completely devoid, empty calorie 22 would consider a complete empty calorie food. That's what I 23 Q. Okay. 24 A. Nutella does contribute nutrients. 25 Q. Okay. So a food that's loaded with sugar, TSG Reporting - Worldwide (877)-702-9580 Confidential Page 149 1 you would consider nutritionally empty calories? 2 MS. BAL: 3 Q. BY MR. FITZGERALD: 4 A. That is not what I said. 5 Q. Okay. 6 A. What I said is a food, such as a sugared 7 Is that right? How did I misstate your testimony? beverage that is 100 percent sugar 8 Q. 9 A. 10 Objection. Okay. is devoid of all other nutrients, would be considered an empty calorie food. 11 Q. Okay. 12 A. That's what I said. 13 Q. Okay. 14 What other foods don't contribute nutrients, besides sugared beverages? 15 A. Pure candy. 16 Q. So anything pure sugar, basically? 17 A. Anything that is pure sugar. 18 Q. Okay. 19 A. You know, I'm not going to classify every 20 Anything else? food that was ever made. 21 Q. Would you 23 A. That is not how I would classify Nutella. 24 Q. Okay. 25 A. Nutella is a spread, it's a condiment. 22 Do you agree that Nutella is a dip? Would you TSG Reporting - Worldwide (877)-702-9580 Confidential Page 150 1 Q. Okay. So if you had the choice, you 2 wouldn't have used 3 "dip" in this article? 4 5 A. I don't know where she got that copy. None of the copy really came from anything I said. 6 7 you wouldn't have used the word Q. Okay. So during the interview, you didn't talk about Nutella using Nutella as a dip? 8 A. No. 9 Q. And you wouldn't agree with using Nutella in 10 that way? 11 A. No. 12 Q. All right. Directing your attention to 13 plaintiffs' Exhibit 34, which bears production number 14 952. 15 16 17 THE REPORTER: Excuse me, Counsel. There was no 34 in the binder. MR. FITZGERALD: Oh, that's right. Okay. The 18 court reporter's right. 19 I somehow missed putting it in the binder, so I don't 20 have it for you, but 21 MS. BAL: 22 MR. MARRON: 23 24 25 I didn't have We're talking about lunch. I didn't Sorry. Maybe we can make a copy at a break or something. MR. FITZGERALD: Okay. All right. asked questions yet, so... TSG Reporting - Worldwide (877)-702-9580 I haven't Confidential Page 151 1 2 MS. BAL: Wait. Look, if now's not a good time I just thought, since there was some other stuff 3 going on, we would talk about how he wanted to handle 4 lunch. 5 MR. FITZGERALD: Okay. Let me get Let me 6 Let me ask a few more questions, then we can 7 we can discuss. 8 9 Q. BY MR. FITZGERALD: So to clarify: then I have a document in front of me, it's Bates stamped CEVERS 10 952, but I don't have extra copies of it. 11 actually, I didn't even put it in her binder, so I'm 12 not going to use it as an exhibit. 13 I'll just ask: And, So I have in front of me what 14 appears to be an e mail from you to Elise Titan, dated 15 July 19, 2010. 16 this case; it bears production number CEVERS 952. 17 And it looks like it was produced in And the second paragraph of the e mail, it's just 18 three paragraphs, it's a short e mail, it says: 19 think that's why the Nickelodeon parent piece ended up 20 recommending Nutella as a snack," parentheses, "I 21 didn't say 'all natural,' by the way; the writer came 22 up with that." 23 24 25 "I Is that referring to the piece we just looked at, the perfect snacks, the Nutella parent piece? A. I believe so. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 152 1 Q. Excuse me. 2 A. I believe so. 3 Q. And since this e mail is dated July 19th, The Nickelodeon parent piece? It sounds like it to me. 4 2010, does that refresh your recollection as to when 5 the article may have been published? 6 7 A. Sometime in that Vicinity, or that might have just been when I became aware of it too. 8 Q. Okay. 9 A. Often, when I'm interviewed by reporters, 10 they don't you know 11 Q. 12 A. 13 remember to follow up and tell me that it's published. 14 15 Follow up? Q. Okay. So I may have just found it. So it could have been a couple months later or something? 16 A. Yeah, I don't know. 17 Q. Don't recall. 18 When you saw the copy, did you contact the writer? 19 A. I don't recall. 20 Q. Do you recall making any efforts to address 21 what 22 copy? what you perceived to be incorrect about the 23 A. 24 MR. FITZGERALD: 25 I don't believe I did. All right. Why don't we take a lunch break. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 154 1 l l " 3 l " lf l f f k l 6 f f ll l f ll l ll l d f ll " 9 f d 11 ll 1 l L l l 17 35 110 19 f 103 l l 22 l 2 f f TSG Reporting - Worldwide (877)-702-9580 Confidential Page 155 1 ' l l f 3 f 6 ' f l d " fl l ll l" 9 f 11 l l 1 ' l ll l 17 l ' l l 19 l d l d fl l l 22 f 2 TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 156 1 f f l f l l f 3 ll f f f l l ' l l f 6 l 9 f l f ' f d l f 11 l 1 f l l f " 17 f f ll l l ll l 19 f l " ' 22 ' TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 157 1 l " 13 f 3 50 l ll l " f 6 l f " 9 f 11 ' f 1 17 l 19 f 22 2 " l f 3 l l " f TSG Reporting - Worldwide (877)-702-9580 Confidential Page 158 1 ' ' f ll 3 f 6 l l l 9 ld l f d 11 l f 1 f ll 10 l f ll f f 3 l f _ 17 _ 19 ' 22 ' f 2 l f f l f ll TSG Reporting - Worldwide (877)-702-9580 'll Confidential Page 159 1 ' f 3 d l l 6 l l d f l 9 l d f " l 11 l f f l d 1 ll f l l " ' ' 105 f 17 ' f 19 d l f 22 TSG Reporting - Worldwide (877)-702-9580 d Confidential Page 160 1 d " ' l 3 ff l l f l l f " 6 f ll 9 ll 11 " f l 1 l " " " l ' ll " f l ll " l " " 17 l 19 l ll f l f l l 22 d ll f f l 2 f f l ll ' TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 161 1 l 3 l l lf ' l d 6 ll f " l ll 9 ll f ll l " 11 f 1 f ll 17 ff l f f ' 19 ' ll 22 " ll 2 ll l f " ' l TSG Reporting - Worldwide (877)-702-9580 Confidential Page 162 1 l ll f " ll f 3 " l " " f ' " 6 ' f l l " ll f f m l 9 ' k f 11 f l ll f l f ' ' 1 f f l ll l d TSG Reporting - Worldwide l (877)-702-9580 Confidential Page 163 1 d 'm 3 ff d ff l 6 l f f f 9 d l l 11 d f f 1 ld ' f l f l f l f ' l l l f 17 19 ' l f ' 103 22 l f f TSG Reporting - Worldwide (877)-702-9580 f Confidential Page 164 1 l "f l " ' l ' f l 3 ' 6 f f ' ll ' d 9 ' 106 f " l " 11 l " ll l " ' " ll 107 1 ' 10 17 " f ll l " 19 l 22 l l TSG Reporting - Worldwide (877)-702-9580 Confidential Page 165 1 3 l f l 6 o f ' ' f 9 f f " 11 50 ll f l l l l " ' 1 f 17 " f 19 l ll l f f l l " 22 " 2 f ll l TSG Reporting - Worldwide (877)-702-9580 Confidential Page 166 1 f l l f l l " 3 f 6 9 o " ll 11 f " ' " l " f 1 l ll f ll 17 l lf f 19 22 l ll 2 lf TSG Reporting - Worldwide (877)-702-9580 f Confidential Page 167 1 l lf f ll 3 ll ' ll ll d f 6 ' 13 l 9 f d ' ll ld l f l 11 l ' l 1 ' f 17 ' 19 l l f 22 l ll f l l " l 2 f f d f TSG Reporting - Worldwide l (877)-702-9580 Confidential Page 168 1 2 3 4 5 6 Q. Okay. Does the label give any indication of what the correct proportion is? A. Other than just viewing a picture, it you know, there's a serving size. Q. Well, the serving size is for Nutella; right? 7 A. Right. 8 Q. So does the label give any information about 9 the correct proportions for a balanced breakfast? 10 A. No. 11 Q. Did you have any input on that label? 12 A. No. 13 Q. And the serving size it shows is two 14 15 16 17 18 19 It just gives a visual. tablespoons; right? MR. SHORR: Objection. Calls for speculation. She said she had nothing to do with the label. THE WITNESS: I had nothing to do with the label. I wasn't there when the food was photographed. Q. BY MR. FITZGERALD: The question is: 20 label indicates that the serving size is two 21 tablespoons; correct? 22 A. The label says two tablespoons. 23 Q. How much Nutella is depicted in that 24 25 picture? MR. SHORR: Same objection. TSG Reporting - Worldwide (877)-702-9580 The Confidential Page 169 1 MS. BAL: 2 THE WITNESS: 3 4 Join. I wasn't at the photo shoot, so I wouldn't know. Q. BY MR. FITZGERALD: Based on your experience 5 as a spokesperson for Nutella and as a registered 6 dietitian using foods, can you give your best estimate 7 of how much Nutella is on the piece of bread in the 8 picture? 9 MR. SHORR: Same objection. 10 MS. BAL: 11 THE WITNESS: 12 13 14 Objection. I wasn't at the photo shoot, I didn't have a measuring spoon, so I do not know. Q. BY MR. FITZGERALD: Do you see that the Nutella Web site address appears on the label twice? 15 A. I see it once. 16 Q. Okay. 17 Calls for speculation. I see it twice, yes. Do you have an understanding of when the Web site was added to the label? 18 A. No. 19 Q. Do you have an understanding of whether the 20 Web site being on the label has increased traffic to 21 the Nutella Web site since it was added? 22 A. 23 MR. FITZGERALD: 24 THE WITNESS: 25 MR. FITZGERALD: I have no idea. Okay. Okay. You can set that aside. I can't keep it? You probably have some, I would TSG Reporting - Worldwide (877)-702-9580 Confidential Page 174 1 MR. FITZGERALD: 2 Q. 3 Forty one. BY MR. FITZGERALD: Have you had a chance to review it? 4 A. Yes, I have. 5 Q. Is this an e mail where you're e mailing 6 comments back on a couple of the mommy party 7 materials? 8 A. Yes, those are my comments. 9 d 1091 9 ' 11 1 " ll f f l l " l l " f 19 l f l 17 ' f d l ff " " l f " ' ' " 22 l f ll l l f l " 2 TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 175 1 f f l f 3 2 6 l ll f ll f ' 2 9 l l 2 l 1 l ' f l f f 11 ' f l f f ll l ll 1 17 ll Q. BY MR. FITZGERALD: f l Do you think there's 18 anything misleading about advertising Nutella as being 19 made with skim milk? 20 A. It is made with skim milk. 21 Q. Okay. 22 That's a fact. Is there anything misleading about that, even though it's factually correct? 23 A. No. 24 Q. Does advertising Nutella as being made with 25 skim milk imply that it's healthy? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 176 1 A. No. 2 Q. Does it imply that it's healthier than if it 3 were made with regular milk? 4 A. No. 5 Q. Do you have an understanding of why Ferrero 6 advertises Nutella as being made with skim milk? 7 A. Because that's the factual truth. 8 Q. Does Ferrero advertise Nutella as being made 9 with sugar and modified palm oil? 10 A. It's on the label, it's on the Web site. 11 Q. My question was: 12 Does Ferrero advertise or promote Nutella as being made with sugar and palm oil? 13 A. I don't know. 14 Q. Have you ever seen such an advertisement? 15 A. I've seen that information. 16 Q. Have you ever seen such an advertisement? 17 A. I've seen it on the Web site. 18 MS. BAL: 19 THE WITNESS: 20 Q. Objection. Vague and ambiguous. I've seen it on the label. BY MR. FITZGERALD: Can I direct your 21 attention to the next exhibit, please. 22 Exhibit 42; the range is 1116 to 21. 23 A. 24 MR. FITZGERALD: 25 It's Okay. I'm just going to take a moment so your counsel can get a copy of it as well. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 181 1 A. 2 tablespoons. 3 Q. 4 Yeah. The serving size is 37 grams for two This is 18, so it's roughly half. Okay. Directing your attention to the next exhibit, 43; 246 to 47. 5 A. Yes. 6 Q. You're familiar with this document? 7 A. (Nods head.) 8 MR. FITZGERALD: 9 it out to your attorneys. 10 THE WITNESS: 11 Q. I'll just give a chance to hand Okay. BY MR. FITZGERALD: Now, earlier you had 12 testified about an advertorial that appeared in one of 13 the magazines you identified. Was it Working Mother? 14 A. Yes. 15 Q. Is this the advertorial that appeared in the 16 Working Mother magazine? 17 A. That is correct. 18 Q. And has this advertorial appeared elsewhere? 19 A. The nurse practitioner magazine; and, in 20 21 22 23 24 25 addition, we've used it for other events in marketing. Q. You've brought it along with For instance, did you bring this to the mommy party? A. I didn't personally bring it. as part of the packets. Q. It was in that package? TSG Reporting - Worldwide (877)-702-9580 It was sent Confidential Page 216 1 2 3 4 way of saying the same thing. Q. Do you think that the word "perfect" would be a compelling word to consumers when they read this? MS. BAL: Objection. 5 THE WITNESS: 7 MR. SHORR: 8 Q. Oh, sorry. It calls for speculation. 6 Vague. 9 10 I don't know. Same objection. BY MR. FITZGERALD: Did you use the word "perfect" in order to bolster the idea that you were conveying here? 11 A. Perhaps. 12 Q. What is the optimal ratio of protein to 13 carbohydrate to fat, for 14 nutrition breakfast? 15 A. for a perfect balanced The IOM, the Institute of Medicine, which 16 also is the basis for the U.S. dietary guidelines 17 the U.S. dietary guidelines use the Institute of 18 Medicine and they give a range. 19 10 to 25 percent of their calories; carbohydrate is 45 20 to 65 percent of their calories. 21 I said protein. So for protein, it's What did I just say? Did I say fat? 22 Q. Not yet. 23 A. Fat is 20 to 35 percent. 24 Q. Twenty to 35 percent? 25 A. Percent of your calories. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 221 1 2 3 Q. So it's just less for the younger children, basically, in the same ratios? A. It depends on what age you're talking about. 4 At certain levels of young children, they need more 5 protein, so you will have a higher protein. 6 why those ranges are pretty wide. 7 Q. Okay. That's Going back to the answer you provided 8 to what is considered a balanced breakfast: 9 see that you said "a half cup of sliced strawberries 10 Do you and one cup of 1 percent milk"? 11 A. Yes. 12 Q. Why is it that you provided measurements 13 14 there? A. I was giving an example, and that's why I 15 referenced the school age child. 16 give an example based on a child of about a certain 17 age, and do it in a very general way. 18 19 Q. Okay. I was trying to just And you also said, I'm sorry, "a small whole grain bagel" as well, there, too; right? 20 A. Yes, I did. 21 Q. Okay. 22 Now, when you talked about Nutella, you didn't give a serving size for Nutella, did you? 23 A. No, I did not. 24 Q. Why not? 25 A. I'm not sure. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 222 1 Q. Do you think that would be important to 2 consumers, to know what serving size is appropriate to 3 feed the children? 4 A. I've already done that in this document, on 5 that page, and I've said that many times: 6 tablespoons. 7 Q. 8 9 One to two Do you think it's important for consumers to know that information? A. It's important for them to know one to two 10 tablespoons. 11 Q. Okay. Handing you back Exhibit 34, which is 12 the Nutella label. 13 left of the word "Nutella," there's a little 14 there's a column there and there's a couple bolded 15 sentences. Would you look on the To the 16 A. Yes. 17 Q. Can you read the first one to me. 18 A. "Made with over 50 hazelnuts per jar." 19 Q. yeah, That's not a message you were hired to 20 promote; right? 21 A. No. 22 Q. What about the one underneath that? 23 A. "Contains no artificial colors." 24 Q. You weren't hired to promote that message? 25 A. No. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 223 1 Q. And the one underneath that? 2 A. "Contains no artificial preservatives." 3 Q. Okay. 4 either? 5 A. No. 6 Q. Where on the label does it say consumers And you weren't hired to promote that 7 should have one to two tablespoons for a balanced 8 breakfast? 9 A. On a label, any label, there's a serving 10 size which serves as an official reference amount 11 based on a reference 2000 calorie diet. 12 a reference amount, because all individuals are 13 different with 14 activity; so this is based on about a 2000 calorie 15 diet. 16 Q. It is simply Okay. you know, based on age, gender, and Do you think that stating on the 17 label an example of a tasty yet balanced meal, without 18 identifying the one to two tablespoons of Nutella as 19 being part of that balanced meal, is misleading? 20 A. 21 MS. BAL: 22 Q. BY MR. FITZGERALD: 23 A. Because it's a photograph. 24 Q. It's also a sentence, isn't it? 25 A. Which sentence are you referring to? No. Objection. TSG Reporting - Worldwide Why not? (877)-702-9580 Confidential Page 224 1 2 3 Q. Doesn't it say: "An example of a tasty yet balanced breakfast"? A. Yes, and it doesn't give amounts of 4 anything. 5 juice, and Nutella on whole wheat bread." 6 Q. It says: Okay. "A glass of skim milk, orange Do you think it would be important 7 for consumers to know how much skim milk, orange 8 juice, whole wheat bread, and Nutella they would have 9 to eat in order for it to meed your definition of a 10 balanced breakfast, which is the optimal ratio of 11 protein to carbohydrate to fat, plus some of the other 12 things you said? 13 MS. BAL: 14 Can I have the question read back. (Record read.) 15 MR. FITZGERALD: 16 Q. I'll rephrase the question. BY MR. FITZGERALD: You previously defined a 17 balanced breakfast as one that has the optimal ratios 18 of protein to carbohydrate to fat, plus what's 19 comprised of a whole grain, a protein, and so forth. 20 Do you think, when consumers read that label, it 21 would be important for them to know how 22 those ingredients they would need to eat in order to 23 have this optimal ratio? 24 MS. BAL: 25 MR. SHORR: Objection. how much of Calls for speculation. Same objection. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 225 1 THE WITNESS: 2 Q. BY MR. FITZGERALD: 3 A. It's a label. No. Why not? It's a product that many 4 people will use. 5 it's based on your age, gender, and activity level, 6 how much you need. 7 Q. Okay. You can't put amounts on it, because But Ferrero wasn't required to put on 8 the label that this is an example of a balanced 9 breakfast, was it? 10 A. 11 qualitative. They're giving quantitative information, not I mean, they're giving Excuse me. 12 They're giving qualitative information in a 13 photo, not specific quantitative information, because 14 that's an individualized factor. 15 Q. Okay. But when you use the phrase "balanced 16 breakfast" or "balanced meal," you're referring to 17 something very specific and quantitative, aren't you? 18 A. When I give an example. 19 Q. Okay. The next Q&A says: "Why do you 20 recommend eating Nutella as part of a balanced 21 breakfast?" Do you see that? 22 A. Yes. 23 Q. And the second sentence says: "When used in 24 moderation with complementary foods, Nutella can form 25 part of a balanced meal. You can start your day with TSG Reporting - Worldwide (877)-702-9580 Confidential Page 226 1 a genuine and tasty breakfast by spreading Nutella 2 hazelnut spread on a variety of bakery goods, 3 preferably whole wheat or multi grain bread." 4 Do you see that? 5 A. Yes. 6 Q. What is a genuine breakfast? 7 A. It's real food. 8 Q. What's 9 10 What's What's not real food? Processed food is not real food? A. It's "Genuine" to me would be more along 11 the terms of wholesome. 12 safe ingredients, in this case, that contribute 13 nutrients. 14 Q. Okay. 15 A. It's genuine. 16 17 18 19 breakfast. Q. It would be recognizable, Would you It's a genuinely balanced That means true. Would you characterize Nutella on its own as a genuine product? A. Nutella by itself is not you know, I 20 don't make health claims or nutrition claims on 21 Nutella by itself. 22 23 24 25 Q. Would you characterize Nutella by itself as a genuine product? A. Yes, it's a genuine product. product; it has real ingredients. TSG Reporting - Worldwide (877)-702-9580 It's a true Confidential Page 227 1 Q. Earlier you said "genuine" was synonymous 2 with "wholesome." 3 Nutella as a wholesome product 4 MS. BAL: 5 Q. 6 MS. BAL: 7 Would you Objection. Sorry. on its own? Mischaracterizes prior testimony. MR. SHORR: 9 THE WITNESS: 11 Mischaracter BY MR. FITZGERALD: 8 10 Would you characterize Q. Same objection. Yes. BY MR. FITZGERALD: What about Nutella on its own is wholesome? 12 A. You just asked me that. 13 Q. I asked you if you would characterize it 14 15 16 17 18 19 that way, and you said yes. A. Nutella on its own? I don't recommend using Nutella on its own. Q. Okay. So you wouldn't characterize Nutella on its own as wholesome; is that right? A. Nutella, on its own, is a wholesome product. 20 I wouldn't recommend Nutella on its own, that you eat 21 it on its own. 22 ingredients. 23 Q. 24 25 You should pair it with nutrient rich Looking at the next page, the first question and answer at the top. The question says: "What is" "What is an appropriate amount of Nutella hazelnut TSG Reporting - Worldwide (877)-702-9580 Confidential Page 235 1 for two tablespoons of Nutella? 2 A. That's correct. 3 Q. But syrup has no fat; right? 4 A. That's correct. 5 Q. What's the difference between a condiment 6 7 In calories. and a spread? A. I would say, in this case, they're 8 synonymous, a spread and a condiment. 9 them as an added food to another food. 10 11 Q. Okay. You're using Earlier you testified that mustard was a condiment? 12 A. Yes. 13 Q. Would you characterize mustard as a spread 14 as well? 15 A. If you spread it on your bread. 16 Q. What about salad dressing? 17 A. You use that condiment on a salad, 18 19 20 generally, or as a dip with vegetables. Q. Okay. So how you characterize it depends on how you use it, basically? 21 A. Um hum. 22 Q. That's a yes? 23 A. Yes. 24 Q. Yes. 25 Can I direct your attention, please, to Exhibit No. 52. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 236 1 MR. MARRON: 2 MR. FITZGERALD: 3 MS. BAL: 4 MR. FITZGERALD: 5 MS. BAL: 6 MR. SHORR: 7 MS. SCOLNICK: 8 MR. MARRON: 9 MR. FITZGERALD: What's the Bates? Sorry. Did you say 52? Fifty two. Fifty two. Right. Thank you. Yes. 10 THE WITNESS: 11 Q. What number is this? Fifty two. Fifty two. Okay. BY MR. FITZGERALD: f l ll f 1 It's 537 through 541. l f ll d m 17 l f 19 537 f l l L " ll f ll f l " 22 2 " TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 237 1 f f l f f f " 3 6 f l l l 9 11 l l f l f l 1 " l f f l l ' f ff ll" 17 f ff " l l d 19 f f ' ll f ' ll " 22 ' ' 2 ll l f ff l f TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 238 1 d " 3 ff l " f 6 ll 9 11 l " f d ff l " " f " 1 17 l ll f l l 19 ll f 22 f f l l l l 2 d f TSG Reporting - Worldwide (877)-702-9580 Confidential Page 239 1 f 3 ' ' ll f d ll f 6 ' f 9 f 11 ll f l l l 1 l d 17 l 19 f l f f f 22 ll f l 2 ll ' ' ' f TSG Reporting - Worldwide (877)-702-9580 f Confidential Page 240 1 l ld 3 l l f l ' l 6 ll ' f 9 l ' f l f l 11 ll f l ' ' 1 ' 17 l 19 f f 22 l f l f f l 2 TSG Reporting - Worldwide (877)-702-9580 ll Confidential Page 241 1 ' ' 3 ' ' ll 6 ll d ' ' 9 11 ' ' 1 l l l l f 17 l f " l' " 19 f d l l 22 ' fl 2 d TSG Reporting - Worldwide (877)-702-9580 Confidential Page 242 1 ' ' 3 ll f l l 6 l ' f 9 l ' f " 11 l' " l 1 l f 17 19 22 l f 2 TSG Reporting - Worldwide (877)-702-9580 Confidential Page 243 1 ll 3 l ' l ' f f f 6 l l l f f f l l l l f l l l 9 f ' d 11 l f 1 l d f 17 ff 19 f f ' f 22 24 25 MR. SHORR: Let's take a break before we get to the next exhibit. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 247 1 MS. BAL: 2 THE WITNESS: 3 Q. Objection. Calls for speculation. No. BY MR. FITZGERALD: A few times throughout 4 the day, you've defined "balanced breakfast." 5 recall that? 6 A. Yes. 7 Q. Do you have an understanding of what 8 Do you consumers take "balanced breakfast" to mean? 9 A. No. 10 Q. If you don't know what consumers take 11 "balanced breakfast" to mean, does that make you 12 uncomfortable promoting Nutella as part of a balanced 13 breakfast? 14 A. No. 15 Q. Is "balanced breakfast" a synonym for 16 "healthy breakfast"? 17 A. Yes. 18 Q. So "balanced" is 19 in this context, it's a euphemism for "healthy"; right? 20 A. Yes. 21 Q. And occasionally Ferrero has talked about 22 healthy breakfasts featuring Nutella, correct, as 23 opposed to balanced breakfasts? 24 A. I believe so. 25 Q. And does that include in the commercial TSG Reporting - Worldwide (877)-702-9580 Confidential Page 248 1 that's no longer running, the television commercial? 2 3 A. You're asking me about a commercial that's no longer running? 4 Q. Earlier you testified that you were aware 5 that there was a commercial about Nutella, that is no 6 longer running; isn't that right? 7 A. Yes. 8 Q. Have you seen that commercial before? 9 A. Yes. 10 Q. Did that commercial promote Nutella as being 11 part of a healthy breakfast? 12 A. I don't recall. 13 Q. Did that commercial use the word "healthy"? 14 A. I don't know. 15 Q. Did it use the word multiple times? 16 A. I don't remember. 17 35 19 l l l f 105 ll 'm 22 ' fl ll l d 2 " l f l f TSG Reporting - Worldwide (877)-702-9580 l f Confidential Page 270 1 to say that Nutella provides a good source of 2 vitamin E; is that correct? 3 4 A. That's correct. Nutella provides 9 percent of the daily value in a 2 tablespoon serving size. 5 Q. Of vitamin E? 6 A. Yes. So that is not a good source. 7 under the good source, but it does contribute 8 It's vitamin E. 9 Q. Okay. 10 A. I don't know the exact right off the top of 11 12 13 And what about B vitamins? my head, but it does contribute amounts of B vitamins. Q. Okay. Directing your attention to Exhibit 56, which is 974. 14 I think you have to hand this one out, 974. 15 MR. MARRON: 16 MR. FITZGERALD: 17 974? Yeah. handed this out already. 18 MS. BAL: 19 MR. FITZGERALD: 20 MS. BAL: 21 MR. FITZGERALD: I think we may have Oh, no. Did you say yes, you think we have? I don't think so. Oh. It's just It's a one 22 basically a one paragraph e mail, Scott. 23 looking at it? 24 THE WITNESS: 25 Q. Right. Do you mind It was Karl BY MR. FITZGERALD: TSG Reporting - Worldwide Have you had a chance to (877)-702-9580 Confidential Page 271 1 review the 2 A. 3 Q. Yeah. exhibit? And this is an e mail where 4 you're talking to Karl Krohn about the new Nutella 5 commercial; is that right? 6 A. Yes. 7 Q. And in this e mail, you said that 8 MS. BAL: 9 Do I have that? Is this it? 10 11 I'm sorry. MR. FITZGERALD: You don't. No, sorry. I don't 12 MR. MARRON: 13 MR. FITZGERALD: 14 MR. MARRON: 975? 974. 974. " l l 17 ' l ' ' '" 19 22 " 2 l " ' l l ff ll TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 272 3 MS. BAL: You know what? I'm sorry. 4 need to see 5 I really really need to see the document, so... If we're talking about Ferrero here, I 6 MR. FITZGERALD: 7 MS. BAL: 8 MS. KOTRAN: 9 10 Here. Thank you. And, Connie, could you speak up a little bit more, because I'm having trouble hearing you too. 11 THE WITNESS: Oh, okay. 12 MS. KOTRAN: It's okay. 13 THE WITNESS: Sorry. I have something in my eye. 1 ll l l f l 17 ll 19 f l l ld 21 MR. FITZGERALD: 22 MS. BAL: 23 MS. KOTRAN: 24 MS. BAL: 25 Q. l l Can I have it back, Colleen? Oh, I'm sorry. Is this it? No, that's not it. Oh. BY MR. FITZGERALD: TSG Reporting - Worldwide Have you ever (877)-702-9580 Confidential Page 273 1 MS. KOTRAN: 2 MS. BAL: 3 MR. FITZGERALD: We still didn't get it. Oh. I'm sorry. I think we might be 4 missing an extra copy; but you've had a chance to read 5 it, so... 6 (Sotto voce remarks.) d 9 f " 11 " l " " ' l 1 l l l l l 17 ll 19 f l l l 22 2 ll f l TSG Reporting - Worldwide ll (877)-702-9580 Confidential Page 274 1 " 3 f l " " " ll ll 6 ' ll ll 9 l l l l 11 fl l 1 l 17 Q. Earlier you testified that "balanced 18 breakfast" is synonymous with "healthy breakfast." 19 you recall that? Do 20 A. Yes. 21 Q. And you said that, in that context, the word 22 "balanced" is a euphemism for "healthy." 23 remember that? Do you 24 A. Yes. 25 Q. Isn't that essentially the same thing as TSG Reporting - Worldwide (877)-702-9580 Confidential Page 275 1 calling Nutella 2 words "health" and "nutrition"? or advertising Nutella using the 3 MS. BAL: 4 THE WITNESS: Objection. Vague and ambiguous. The commercial is for Nutella. The 5 commercial depicts a healthy and balanced breakfast, 6 but the commercial is a Nutella commercial. So it's f f l 9 l l l f l f 11 f l d l 1 f l l ll l ' l l 17 19 f d l f d 22 " l f l " " l l ll 2 l ll f " l f l TSG Reporting - Worldwide f (877)-702-9580 l l Confidential Page 276 1 2 THE WITNESS: question. I don't really understand your You're not being specific enough. 3 MR. FITZGERALD: 4 Q. Well, I'll withdraw it. BY MR. FITZGERALD: Directing your attention 5 to plaintiffs' Exhibit 57. 6 page that was stapled on the front of it. 7 8 9 MS. BAL: where? MR. FITZGERALD: MS. KOTRAN: 11 MS. BAL: 12 THE WITNESS: 14 On front of the last exhibit. The first page of it. Oh, this is... Oh, that's Karl and Elise. Okay. Sorry, I'm talking to myself. Okay. 15 16 Q. Let me see. to Karl 17 It's the other It was the other page that was stapled 10 13 It's 973. Karl that was from Elise Okay. BY MR. FITZGERALD: Have you had a chance to review it? 18 A. 19 to who. 20 Q. Sure. 21 A. Yes. 22 Q. Okay. 23 A. Okay. 24 Q. And this is an e mail from Elise Titan at 25 Yeah. I needed to make sure who was talking I understand. MS&L to Karl Krohn? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 277 1 A. Correct. 2 Q. And there's some other people, including 3 yourself, copied on it? 4 A. Yes. 5 Q. Who is Anthony Jackson? 6 A. Anthony Jackson, I have never met him. 7 presume he's a MS&L on the PR team. 8 9 Q. A. But not somebody you worked with I recall an occasional seeing him. Q. Okay. And Allison Showalter, I'm not sure if we had said her name earlier or not, but she 14 A. I believe you did. l l 17 " l l ' l l 19 It's not somebody I know personally. 12 13 Okay. regularly, then? 10 11 I ' l ll ll l " " l 22 TSG Reporting - Worldwide (877)-702-9580 " l Confidential Page 278 1 ' 3 l " l " l 6 Q. Had you ever talked to anybody about online 7 reactions to Ferrero's breakfast messaging vis a vis 8 Nutella? 9 A. The only online activity that I that they 10 shared with me was after the New York event, the 11 Twitter feed from the actual event that I spoke at to 12 the mommy bloggers at the roundtable. 13 that, no. 14 15 Q. Other than Directing your attention to Exhibit 43. This is the advertorial? 16 A. Um hum. 17 Q. At the very bottom of the first column, 18 there's it starts "it's no surprise," and then 19 there's a paragraph talking about the benefits of 20 children eating breakfast. Do you see that? 21 A. Um hum. 22 Q. Is that source also the Rampersaud article? 23 A. I believe so. 24 Q. Do you see the darkened box that says "ask 25 Connie" TSG Reporting - Worldwide (877)-702-9580 Confidential Page 279 1 A. 2 Q. 3 A. Um hum. 4 Q. Let's see. Yes. in the second column? A few lines down, it says: "A 5 slice of whole wheat toast, spread with an appropriate 6 amount of hazelnut" 7 serving of fresh fruit, and a cup of yogurt or 8 1 percent milk, provides balanced nutrition to start 9 the day." "of Nutella hazelnut spread, a Do you see that? 10 A. Yes. 11 Q. And the appropriate amount is one to two 12 tablespoons; is that right? 13 A. Yes. 14 Q. How would consumers know from reading this 15 16 what the appropriate amount was? A. Again, this is going in a consumer 17 publication where it's up to a mom at some point to 18 determine, because it's based on age, gender, and 19 activity of your child whether to use one or two 20 tablespoons. 21 Q. But how is a mother to know that the 22 appropriate amount is either one or two tablespoons 23 from this article? 24 A. She would look at the product label. 25 Q. So looking at the product label, a mother TSG Reporting - Worldwide (877)-702-9580 Confidential Page 280 1 would discern that the appropriate amount is two 2 tablespoons? 3 A. 4 5 Or she could look on the Web site, or she could use her own judgment in feeding her child. Q. Do you see right below that, it says: "For 6 example, serve your child whole wheat toast or a 7 whole grain toast or waffle, with a dab of Nutella 8 hazelnut spread"? 9 A. Right. 10 Q. Yeah. 11 A. Again, this is a consumer publication. 12 "Dab." What is a dab? That would refer, colloquially, to a small amount 13 Q. 14 A. Okay. and which is very consistent with my 15 messaging of using a small amount to enhance a 16 nutrient rich food. 17 Q. Part of the messaging you talked about is 18 is conveying the proper serving size and proper 19 proportions; right? 20 A. Um hum. 21 Q. This article doesn't do that, does it? 22 A. A dab would refer to a small amount 23 Q. Okay. 24 A. 25 Q. in most moms' minds, I presume. Okay. But it doesn't refer to a specific TSG Reporting - Worldwide (877)-702-9580 Confidential Page 281 1 quantitative serving size, does it? 2 A. It says a dab. 3 ll ' 1031 6 ' ld f f 9 l 11 f ll " ll l 1 l l l 17 ' l l l ll l 19 20 Q. 21 ingredients? 22 A. They're simple ingredients. 23 Q. Are they quality ingredients? 24 A. Yes. 25 Q. Are they healthy ingredients? Are sugar and palm oil simple and healthy TSG Reporting - Worldwide (877)-702-9580 f Confidential Page 291 1 2 Q. about: And then "hectic mornings" is what we talked Either the mom or the child is busy? 3 A. Um hum. 4 Q. School obligations, that sort of thing? 5 A. Yes. 6 Q. Other than hectic mornings and finicky 7 appetites, is there any other reason why breakfast is 8 a challenge? 9 MS. BAL: 10 and answered. 11 12 Objection. THE WITNESS: The question's been asked I believe we discussed time, distraction, you know, picky eating, et cetera. 13 Q. BY MR. FITZGERALD: I'm directing your 14 attention to page 1135, and you see there's a 15 question 16 17 18 19 THE WITNESS: me? Oops. Sorry. Can you still hear Okay. Q. BY MR. FITZGERALD: Do you see this appears to be a question and answer card? 20 A. Um hum. 21 Q. And the question is: 22 "What makes a balanced breakfast?" 23 A. Um hum. 24 Q. And the answer is: 25 "Nutella hazelnut spread on your favorite whole grain bakery item, with a glass TSG Reporting - Worldwide (877)-702-9580 Confidential Page 292 1 of skim milk and a serving of fruit, is a quick and 2 easy solution for a balanced breakfast." 3 A. Yes. 4 Q. How come there's no portions provided here? 5 A. It was a trivia game. 6 Q. Do you think it's important, when making 7 references to a balanced breakfast, to tell people 8 what the proportions are? 9 10 A. I don't think we have to do it every single time. 11 ' l fl 25 " 1 17 " " l f " " l f l f 19 TSG Reporting - Worldwide (877)-702-9580 f Confidential Page 293 1 A. Oh, okay. ' D " " 3 f 6 f f 9 b l ll ll f f 11 f 1 f ll f f l 17 f 19 l ll f ll f ' ll 22 f ' 2 TSG Reporting - Worldwide (877)-702-9580 l ' Confidential Page 294 2 Q. 3 please. 4 115 to 121. Can I direct your attention to Exhibit 58, I think we might have to get this. 5 MR. MARRON: 6 MR. FITZGERALD: 7 MR. MARRON: 8 MR. FITZGERALD: 9 THE WITNESS: 10 This is 115 to 121? 121. Is it 115 or 121? It's 115 to 121. Is that still okay? MS. SCOLNICK: If we're off the record, can we 11 take a very short break, give you five or six exhibits 12 to copy? 13 14 15 16 17 18 MR. SHORR: Yeah. there, or do you need MS. SCOLNICK: MR. SHORR: Sure. Not at all. They If you ask Anne, that's okay, and she'll walk you out. MS. SCOLNICK: 20 MS. BAL: Okay. Thanks. Are we off the record? Are we going off the record? 22 THE REPORTER: 23 MS. BAL: 24 MR. SHORR: 25 Not at all. just don't know me, so... 19 21 Do you mind just walking out We're still on the record. Oh, okay. Let's just let her move this and we'll start... TSG Reporting - Worldwide (877)-702-9580 Confidential Page 295 1 2 3 4 MR. FITZGERALD: Judy, there's a door at the other side. Q. BY MR. FITZGERALD: Okay. Ms. Evers, sorry for all the goings on. 5 Have you had a chance to review Exhibit 58? 6 A. No. 7 Q. Okay. 8 I'm directing your attention to the first page, 9 I was distracted. Sure. Will you please do that. the e mail at the bottom. 10 A. Um hum. 11 Q. The final bullet point. 12 A. Yes. 13 Q. This is an e mail that you sent to Chris 14 Right. Montemurro; right? 15 A. Right. 16 Q. You see at the bottom: Um hum. "I would like to 17 discuss the build your own breakfast feature. 18 it could be significantly improved and build a more 19 compelling case for using Nutella at breakfast"? I think 20 A. Yes. 21 Q. Does that refresh your recollection as to 22 whether, in terms of creating content, the purpose of 23 that was to build a compelling case for using Nutella 24 at breakfast? 25 MS. BAL: Objection. Calls for speculation. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 296 1 THE WITNESS: My point in this bullet was that 2 the build your own breakfast feature could more 3 accurately show the comparisons of a Nutella breakfast 4 and other types of breakfasts, that it would be along 5 the lines of those balanced guidelines. 6 Q. BY MR. FITZGERALD: Okay. And that was to 7 build a compelling case for using Nutella as opposed 8 to something else? 9 10 A. A compelling case that Nutella at breakfast is one choice that could be a balanced breakfast. 11 Q. What is the breakfast builder? 12 A. The breakfast builder is a feature on the 13 Web site for 14 year olds and 14 does a couple of things. 15 breakfasts that are already kind of set, that I 16 designed; and then it also does some kind of 17 pick and choose and combination, so a consumer can see 18 what happens to the nutrient profile with different 19 combinations. 20 Q. Okay. 14 and up, and it It shows comparative When you said it's 14 and up, is 21 there some sort of a disclaimer on the front page for 22 that? 23 A. When you click on breakfast builder or build 24 your own breakfast, you have to put in your birth 25 date; and if you're younger than 14, it won't go TSG Reporting - Worldwide (877)-702-9580 Confidential Page 305 1 l ll ll ' f l l l " 3 f 6 ' ' l l 9 ld l l f ll 11 12 13 14 Q. What was the mommy blogger roundtable in New York? A. In New York City? It was an event where 15 some, you know, key mommy bloggers were invited to a 16 breakfast event, and it was in a child care facility, 17 so the children were all off doing their little fun 18 things, and we presented a program. 19 Q. Okay. 20 A. I don't know for sure. 21 of 20, maybe. How many people attended? Perhaps in the range I would say 10 to 20, I would guess. 22 Q. Okay. 23 A. That's just an estimation. 24 25 That was a long time ago. Q. Okay. And that was on March 9th, 2010? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 306 1 A. That is correct. 2 Q. Directing your attention to Exhibit 63, 3 which is 278 to 87. 4 5 THE WITNESS: welcome to. 6 7 If you want to fix my thing, you're MR. FITZGERALD: a You want to let's take Oh, the holes came out. 8 THE WITNESS: 9 MR. FITZGERALD: Thank you. 10 MR. MARRON: 11 MR. FITZGERALD: 12 THE WITNESS: 13 MR. MARRON: 14 THE WITNESS: 15 Yeah, let's take a It's fine. Okay. 278 to? 278 to 87. Okay. There it is. Do you want me to read the complete Twitter feeds of everybody? 16 Q. BY MR. FITZGERALD: 17 A. Okay. 18 Q. We'll go through some of the individual 19 You don't have to. comments, but... 20 A. Okay. 21 Q. And I realize it's very, very, very small 22 print as well. 23 A. Yes, it sure is. 24 Q. Directing your attention to the first page. 25 A. Right. And there's a lot of them. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 307 1 Q. Earlier you testified that you had seen 2 tweets from the New York City mom blogger roundtable 3 event; is that right? 4 A. 5 MR. MARRON: 6 Q. 7 Right. These were shared with me. There's one or two of those. BY MR. FITZGERALD: And that's what this exhibit is? 8 A. Yes, this is what I was referring to. 9 Q. Okay. Directing your attention to page 280. 10 This is a tweet deck, I guess you would call it, from 11 a tweeter called Classy Mommy? 12 A. Yes. 13 Q. Do you see the first comment at the top 14 says: 15 ingredients: 16 cocoa"? 17 A. Yes, I see that she's 18 Q. Is that accurate? 19 A. No. 20 Q. Is that something you said? 21 A. No. 22 Q. Is there anything else that you said, that "Surprised to learn Nutella only has four Hazelnuts, skim milk, sugar, hint of 23 would have led her to believe that Nutella has only 24 four ingredients? 25 MS. BAL: Objection. Calls for speculation. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 308 1 MR. SHORR: 2 THE WITNESS: 3 4 would Same objection. I don't Nothing that I said would lead to that. Q. BY MR. FITZGERALD: 5 your attention to page 282. 6 Okay. I'm directing columns there? Do you see there's two 7 A. Um hum. 8 Q. And this is a tweet deck from a tweeter 9 called Jenrab, J E N R A B? 10 A. Yes. 11 Q. In the second column, the third comment Um hum. 12 down, do you see it says: 13 ingredients: 14 nom nom"? "Nutella has four Hazelnut, cocoa, skim milk, and sugar 15 A. Um hum. 16 Q. I think that's like yum yum, almost, 17 Nom nom, who knows what that is? nom nom. 18 That's not accurate; right? 19 A. No, that's not accurate. 20 Q. So both 21 22 23 24 25 both of these bloggers got the same inaccurate impression? A. Right. You know, they were tweeting and listening at the same time. MR. SHORR: question. Hold on. Wait for him to finish the Calls for speculation. TSG Reporting - Worldwide You can answer. (877)-702-9580 Confidential Page 309 1 THE WITNESS: 2 Q. Yes. BY MR. FITZGERALD: In the first column, the 3 second comment up from the bottom, do you see it says: 4 "Nutella can be considered a vehicle for eating 5 healthy items for breakfast"? 6 A. 7 Jenrab? 8 Q. 9 Where is that? Jenrab, yes. A. 11 MS. BAL: 12 MR. SHORR: 13 MS. BAL: 14 THE WITNESS: 15 Q. So it's the second comment up Yes. It's the second one from the bottom? It's on the left column. Oh, the left. Yes. BY MR. FITZGERALD: At the event, did you talk about using Nutella to eat a healthy breakfast? 17 18 Are we still on from the bottom, on the first column. 10 16 On Jen A. I did mention that Nutella can be a vehicle for getting kids to eat more whole grains. 19 Q. Did you use the word "healthy items"? 20 A. Perhaps. 21 Q. If you go four comments up from there, it 22 says: 23 chocolate spread." "Nutella is a hazelnut spread and not a Do you see that? 24 A. Yes, I see that. 25 Q. Is that something that you said at the TSG Reporting - Worldwide (877)-702-9580 Confidential Page 310 1 event? 2 A. As I recall, that wasn't me that said that. 3 Q. Who else was presenting at the event? 4 A. Karl Krohn. 5 Q. Did Karl Krohn ever say that Nutella only 6 has four ingredients, at the event? 7 A. I don't 8 Q. Why isn't Nutella a hazelnut spread and not 9 10 11 I don't believe so. a chocolate spread? A. Hazel Nutella doesn't contain any chocolate. 12 Q. Why is Nutella not a sugar spread? 13 A. Because the characteristic ingredient is 14 15 hazelnut. Q. I'm directing your attention to the next 16 page, 283, the second column, the second comment up. 17 Do you see it says: 18 sandwich to school for lunch, send in a string cheese 19 for extra protein"? 20 21 22 "If you are sending a Nutella Is that a suggestion you made during the mommy roundtable bloggers event? A. As I recall, that could have been an answer 23 I gave to a question. 24 gotten asked about that and that may have been the 25 answer that I gave. I'm not sure. I may have I don't have full recollection. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 311 1 2 3 Q. Okay. But you recommend children eating Nutella sandwiches for lunch? A. I don't recommend that, no. Again, that 4 would have been a response to a question, would be my 5 best recollection. 6 Q. 7 see it says: 8 sugary than PB&J"? Okay. Then the comment above that, do you "Nutella sandwich is really not more 9 A. Um hum. 10 Q. Is that something that you said? 11 A. I don't recall whether I said that or not. 12 13 I don't recall. Q. Why is it, in responding to a question, that 14 you recommended that, if you're sending a Nutella 15 sandwich to school for lunch, that you send along a 16 string cheese for extra protein too? 17 A. I don't recall that that's exactly but if 18 I did say it, it's because that would include the 19 protein. 20 21 Q. Okay. Because Nutella doesn't provide that enough protein on its own? 22 A. Right, on its own. 23 Q. Is that a true statement, the comment that 24 Nutella sandwich 25 more sugary than a PB&J? a Nutella sandwich is really not TSG Reporting - Worldwide (877)-702-9580 Confidential Page 312 1 A. I would have to do the nutrient breakdown, 2 but I would presume that if you were using a 3 tablespoon of jam 4 the nutritional breakdown. I don't know. I would have to do 5 Q. Okay. 6 A. You're definitely adding sugar to a peanut 7 butter sandwich. 8 Q. Right. 9 A. Depends on how much jam. 10 Q. If you were going to compare a Nutella If you were 11 sandwich with a peanut butter and jelly sandwich, in 12 order to make it a fair comparison, what 13 servings of each of those things would you use on 14 them? 15 A. That's not something I ever do. 16 Q. Okay. what But if you wanted to do that, would 17 you 18 peanut butter and jelly sandwich to a Nutella 19 sandwich, would you compare two tablespoons of Nutella 20 to a tablespoon of peanut butter plus a tablespoon of 21 jelly, or is there some other ratio? 22 So, in other words, if you were comparing a 23 A. I wouldn't do that, because that's not what I do. 24 Q. Okay. 25 A. I talk about messaging for breakfast, so I TSG Reporting - Worldwide (877)-702-9580 Confidential Page 313 1 2 wouldn't talk about sandwiches for lunch. Q. Okay. Isn't it true that a tablespoon of 3 peanut butter plus a tablespoon of jelly contains 4 about 50 percent less sugar than two tablespoons of 5 Nutella? 6 A. Why are you changing the peanut butter 7 serving size down to one tablespoon, when the serving 8 size of peanut butter is two tablespoons? 9 Q. Well, because I want to make a comparison 10 between peanut butter and jelly and Nutella, and I 11 want to have the same amounts of the products, which 12 is why I was asking you about how 13 a comparison before. 14 A. how you would do A serving size of peanut butter is two 15 tablespoons; a serving size of Nutella is two 16 tablespoons. 17 Q. Oh, okay. So earlier you testified that 18 Nutella is a replacement for a combination of spreads; 19 right? 20 21 22 23 24 25 MS. BAL: Objection. Mischaracterizes prior testimony. THE WITNESS: It can We were talking in terms of breakfast. Q. BY MR. FITZGERALD: Right. So is one of those combinations peanut butter and jelly? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 314 1 A. If it's eaten for breakfast. 2 Q. Okay. And if you were replacing peanut 3 butter and jelly, for breakfast, with Nutella would 4 you replace the 5 using Nutella to replace peanut butter and jelly, you 6 would have to use less Nutella than you would use 7 peanut butter and jelly? 8 9 A. I mean, are you suggesting that, in A serving size of peanut butter is two tablespoons; a serving size of jelly is one 10 tablespoon. 11 somebody puts that on bread, it's frequently three 12 tablespoons, the if you're going to do it by the 13 jar serving size. A serving size of Nutella is two 14 tablespoons. 15 Q. It's frequently eaten together; so if Okay. So when you suggest to consumers that 16 Nutella is a good replacement for peanut butter and 17 jelly at breakfast 18 A. I never suggested that. 19 Q. We just talked about combining peanut butter 20 You're assuming. and jelly for breakfast; right? 21 A. You did. 22 Q. Can I direct your attention to the next 23 page, please, the first column, second down from the 24 top. 25 Do you see the comment says: TSG Reporting - Worldwide "Did you know (877)-702-9580 Confidential Page 315 1 there's actually very little chocolate in Nutella? 2 It's hazelnuts, skim milk, and a hint of cocoa"? 3 you see that? Do 4 A. Yes, I see that. 5 Q. And like the other comments, this doesn't 6 say that Nutella contains sugar or oil, does it? 7 A. It does not say that. 8 Q. I'm directing your attention to page 286. 9 Do you see the first small comment from the top says: 10 "Back from the Nutella event in NYC. 11 it's actually a nut butter, not chocolate butter, 12 Nutella, plus its gluten free." 13 14 15 16 17 18 19 20 21 22 23 24 25 I learned that Did you say at the mommy blogger event in NYC that Nutella is a nut butter not a chocolate butter? A. I may have said that. It does not contain chocolate. Q. Are you aware of whether the FDA has any standard of identity for peanut butter? A. Asked and answered. I said I believe they do; I'm not sure. Q. Okay. And do you know what it is? You don't know what it is? A. Do I have the standard of identity of peanut butter memorized? Q. No. I'm going to represent to you that in order TSG Reporting - Worldwide (877)-702-9580 Confidential Page 316 1 to market a product as peanut butter in the United 2 States, it must contain at least 90 percent peanuts as 3 a standard of identity. 4 A. Okay. 5 Q. Do you understand that? 6 A. Yes. 7 Q. And I'm also going to represent to you that 8 Nutella contains about 13 percent hazelnuts. 9 A. Okay. 10 Q. Do you think that it's fair to call Nutella 11 a hazelnut spread when it contains about 10 percent of 12 the amount of peanuts that have to be in a product in 13 order to be called peanut butter? 14 A. That's not my decision to make. 15 Q. Does it surprise you that Nutella contains 16 only 13 percent hazelnuts? 17 A. No. 18 Q. Did you think it was less than that? 19 A. I didn't ever think about it. 20 Q. Did you think it was more than that? 21 A. I never thought about it. 22 Q. Directing your attention to page 287. In 23 the first column, four comments down, do you see it 24 says: 25 sugar, and cocoa. "What is in Nutella? Hazelnut, skim milk, I'm in love. TSG Reporting - Worldwide Kosher OUD. (877)-702-9580 Not Confidential Page 317 1 kosher for Passover." Do you see that? 2 A. Um hum. 3 Q. So this is another blogger who said that 4 there's only four ingredients in Nutella; right? 5 A. 6 MS. BAL: 7 Um hum. Objection. Mischaracterizes the document. 8 Q. BY MR. FITZGERALD: 9 A. Oh, this is BlogHer? 10 Q. No, I'm on to a new question. 11 A. Oh. 12 Q. We're done with this exhibit. 13 A. Right. 14 Q. What 15 A. BlogHer? 16 Q. Right. 17 A. BlogHer Food was an event in San Francisco. 18 Q. And did that take place on October 8th to 19 What was BlogHer? Oh. What was BlogHer? 9th, 2010? 20 A. Yes. 21 Q. Is that a yearly event? 22 A. I believe so. 23 Q. Where was it held? 24 A. San Francisco. 25 Q. Where in San Francisco? TSG Reporting - Worldwide (877)-702-9580 Confidential Page 319 1 Q. Did you have a pre event phone call? 2 A. I believe so. 3 Q. And who was involved in that phone call? 4 A. I don't recall exactly, except I'm sure it 5 was Allison Showalter and perhaps Elise. 6 remember for sure. I don't 7 Q. And what did you talk about? 8 A. We talked about the table, the setup, the 9 display. 10 11 Q. And so did Nutella have a display in a table and a stand in the within the event? 12 A. Yes. 13 Q. And other products similarly had other 14 tables and so forth? 15 16 A. many exhibitors or sponsors, actually. 17 18 Yes, many Q. What did you do while you were at the BlogHer event during the day? 19 A. Oh, it varied. We would alternately be at 20 our table asking questions, and sometimes we would 21 attend events. 22 educational sessions. They had, you know, programs, ' 2 " l l d f TSG Reporting - Worldwide l (877)-702-9580 Confidential Page 320 1 f ll " 3 f ' l ' 9 Q. ll As a registered dietitian, does it make you 10 uncomfortable advocating feeding children a food that 11 you refer to in other contexts as decadent, as a 12 decadent ingredient in rich desserts? 13 MR. SHORR: 14 THE WITNESS: Object. Argumentative. Any ingredient, any single 15 ingredient, almost anything can be used to create a 16 decadent dessert. 17 18 Q. BY MR. FITZGERALD: Isn't Nutella itself decadent? 19 A. Not when it's used appropriately in the 20 messaging that I'm 21 no. 22 23 24 25 Q. Okay. the way that I'm presenting it, But if it's used on its own, then it is decadent; is that right? A. No. I was referring to using it in combination to create dessert items, high TSG Reporting - Worldwide (877)-702-9580 high fat, Confidential Page 321 1 high calorie dessert items. 2 3 Q. If somebody just ate a tablespoon of it out of the jar, would that be a decadent thing to do? 4 A. I think that that's not the messaging that I 5 do. 6 That's not anything I ever talk about or advocate. It's irrelevant. That's not what I am educating. 7 Q. What is School Family Media? 8 A. School Family Media was a project that runs 9 articles on their site, informational articles, and I 10 believe there was an article that referenced the 11 importance of breakfast. 12 MR. SHORR: 13 THE WITNESS: 14 MR. SHORR: 15 16 17 18 19 Before we get to another, are you... Hmm? I wanted you to finish your answer. I'm sorry. THE WITNESS: Yeah. Well, maybe we should just finish this line, School Family Media. MR. SHORR: But I need to take a break just to check in with staff and see where we are. 20 THE WITNESS: 21 MR. FITZGERALD: 22 MR. SHORR: 23 THE WITNESS: 24 MR. FITZGERALD: 25 THE VIDEOGRAPHER: Oh. Oh, sure. Okay. This is a great time. We can all talk about what Okay. Let's go off the record. The time is 4:57. TSG Reporting - Worldwide (877)-702-9580 We're off Confidential Page 322 1 the record. 2 3 4 5 6 (Recess.) THE VIDEOGRAPHER: The time is 5:19, and we're back on the record. Q. BY MR. FITZGERALD: You attended three mommy parties; is that right? 7 A. That's correct. 8 Q. And two of them were in California? 9 A. Yes. 10 Q. And what counties were they in? 11 A. Orange County, Riverside, and then Denver. 12 Q. And you also attended the BlogHer event in 13 San Francisco? 14 A. That's correct. 15 Q. Other than the two mommy parties in Orange 16 County and Riverside and the BlogHer event in San 17 Francisco, are there any other events for which you've 18 appeared on behalf of Nutella in California? 19 A. Oh, in 20 Q. What is the appropriate frequency for a 21 22 23 24 25 just in California? No. school age child to eat Nutella for breakfast? A. That's not something I've determined or ever talked about. Q. The balanced breakfast that you suggest, featuring Nutella, is that something that you would TSG Reporting - Worldwide (877)-702-9580 Confidential Page 323 1 2 recommend a child eating every day? A. No. I would never recommend the same 3 breakfast every day. 4 getting a variety of foods, mixing it up. 5 Q. Part of good nutrition is Other than the interest in getting a variety 6 of foods, is there any other reason you wouldn't 7 suggest eating a breakfast with Nutella every day? 8 9 A. I just wouldn't suggest it, because, again, I advocate variety. Moderation, variety, and balance 10 are kind of the three hallmarks of good nutrition; so 11 I would never recommend the same meal, of any kind, 12 every single day. 13 Q. Okay. Don't the U.S. dietary guidelines 14 talk about how it's the nutrients that count; the 15 source of them isn't 16 isn't it important? 17 A. isn't really an issue? Yes, it's important, because Or You mix it 18 up because it's more than nutrients. 19 don't know about food. 20 healthful substances in foods, in plant based foods 21 specifically, and so mixing it up is important to get 22 in all those healthful compounds. 23 Q. There's a lot we There's a lot of protective So if you wouldn't recommend a child eat 24 Nutella for breakfast every day, what's the most 25 frequent you would recommend a child eating Nutella TSG Reporting - Worldwide (877)-702-9580 Confidential Page 324 1 2 for breakfast? A. That's something I would have to consider, 3 what a 4 know, how many days. 5 you know, I haven't really defined, you Q. Okay. Do you think, as part of the 6 breakfast messaging and talking about proper 7 proportions, proper amounts, and moderation, that it 8 would be important to consumers to know with what 9 frequency they should feed their children Nutella for 10 breakfast? 11 MR. SHORR: 12 MS. BAL: 13 THE WITNESS: Objection. Calls for speculation. Same objection. Yeah, I think that that's 14 difficult. 15 breakfast builder is a good example of us showing 16 other breakfasts and variety. 17 Q. I think it's an individual BY MR. FITZGERALD: I think the I'm directing your 18 attention to Exhibit 77, which bears Bates numbers 271 19 through 277. 20 MR. MARRON: 21 MR. FITZGERALD: 22 This has an extra document on top of it. 23 MR. MARRON: 24 Q. 25 Actually 269, yeah. BY MR. FITZGERALD: I'm just going to ask you about the e mail. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 325 1 A. Oh, just the first page? 2 Q. Just the first page. 3 MS. BAL: 4 MR. FITZGERALD: 5 THE WITNESS: When you say that, you mean 271? You can Yes, 271. Well, I kind of need to see what 6 you're referring to. 7 MR. FITZGERALD: 8 Go ahead, yes. Yeah, I just wanted to let you know. 9 THE WITNESS: Okay. l 11 l f l l f 1 " m 17 f ld f f 19 " l f 22 l f f 2 25 d d remember why. TSG Reporting - Worldwide (877)-702-9580 l Confidential Page 326 1 f 3 l l ' l ' d 6 f 9 f f 11 f l l f ll l ll 1 l k ' 17 ll ' f l f ll l 19 l 22 f ll l 2 ll l l TSG Reporting - Worldwide (877)-702-9580 f l Confidential Page 334 1 Q. Did you think that her her language that 2 there are multiple different solutions than adding two 3 and a half teaspoons of sugar to a food that tastes 4 great without it, was a valid point? 5 A. I did I understand her point of view. 6 think there are different solutions. 7 I is also a valid solution. 8 9 Q. Okay. I think Nutella Do you see, in the second paragraph of your e mail, the last sentence, you say: "Nutella 10 and many other foods are here to stay, whether 11 dietitians approve or not"? 12 A. Let me see. 13 Q. It's the second Do you see that? 14 What paragraph is that? It's the second paragraph and the last sentence. 15 A. Yes. 16 Q. Would you agree that most dietitians would 17 not approve of feeding Nutella to children? 18 A. No. 19 Q. Do you agree that most dietitians would not 20 approve of Nutella as a standalone product? 21 A. Most likely, but that's speculation. 22 Q. Have any other nutritionists or dietitians, 23 other than Kathy Richards, expressed disappointment 24 that you're the spokesperson for Nutella to you? 25 A. Not to me directly. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 341 1 to use it on whole grains, but not required, that 2 would be misleading? 3 4 MS. BAL: ambiguous. Objection. The question is vague and Also calls for speculation. 5 THE WITNESS: 6 Q. Could you clarify that question. BY MR. FITZGERALD: If somebody said that 7 you should use Nutella, preferably with whole 8 grains 9 A. 10 Q. 11 MS. BAL: 12 MR. SHORR: 13 THE WITNESS: 14 Q. 15 16 17 18 19 Yes. would that be misleading? Same objection. Yeah, I join those objections. I'm not sure. BY MR. FITZGERALD: Do you think that is an incomplete statement? MS. BAL: Same objection, and vague and ambiguous. MR. SHORR: And I join in those objections. You can answer. 20 THE WITNESS: 21 Q. No. BY MR. FITZGERALD: Would you yourself say 22 that it's only preferable to use whole grains with 23 Nutella? 24 25 A. As a spokesperson, I recommend whole grains because that's what I think is the best way to use it. TSG Reporting - Worldwide (877)-702-9580 Confidential Page 342 1 Q. Okay. What if somebody said that Nutella is 2 a great option, especially if it's paired with whole 3 grains? 4 5 6 7 8 9 10 Is that also incomplete? MS. BAL: Objection. THE WITNESS: As a dietitian, I recommend using whole grains. MR. FITZGERALD: Let's take a break. I'm just about ready to pass off. 12 THE WITNESS: 13 THE VIDEOGRAPHER: I just want to make Why don't we just sit here. Yes. I don't need The time is 5:43 and we're off the record. 15 17 And I think sure I have nothing else before doing that. MR. SHORR: 16 Calls for speculation. 11 14 Vague and ambiguous. (Recess.) THE VIDEOGRAPHER: Okay. The time is 5:53. We are back on the record. 18 19 20 21 EXAMINATION BY MS. SCOLNICK: Q. Ms. Evers, my name is Judy Scolnick. And I, 22 along with my co counsel, Mr. Greg Davis, represent 23 the plaintiff in another action. 24 state the name for the record: 25 Ferrero, filed in the District of New Jersey, case TSG Reporting - Worldwide I'm just going to It's Glover versus (877)-702-9580 Confidential Page 366 1 2 MR. SHORR: THE WITNESS: Adolescence end at age 18 in my book. 5 6 Q. BY MS. SCOLNICK: Let me reword this f d l 11 Okay. one last time, see if we can get it right. ' 9 You can answer. 3 4 Object as vague and ambiguous. f l l f l 1 f ld 1 " ' " f l f 17 f l f l l 1 Okay. Thank you. 1 19 20 21 Q. BY MS. SCOLNICK: I believe you said earlier that children like variety? 22 A. No, I don't believe I said that. 23 Q. That they might want 24 25 pick and choose? A. Children like to They might want a cookie one day? I think in regards to variety, I said it's TSG Reporting - Worldwide (877)-702-9580 Confidential Page 367 1 important to introduce variety to children. 2 Q. Right. But that's a difference, because I 3 was going to say that would never happen in my house. 4 Is it a fair statement that children often, 5 frequently tend to be picky and like the same food 6 again and again? 7 A. 8 MS. BAL: 9 That does happen. Objection. for speculation. 10 Q. Vague and ambiguous. Calls Please let me have time to object. BY MS. SCOLNICK: That does happen. And 11 have 12 says something 13 technical correct way at all; I promise you that 14 but it's something along the lines that, the more 15 sweets given, the more sweets wanted? 16 could be something like a sweet tooth. 17 of any such theory? Are you aware of a theory in nutrition that I'm not going to say it the 18 MS. BAL: 19 THE WITNESS: 20 addiction. 21 Objection. I suppose it Are you aware Vague and ambiguous. I have heard the theory of sugar I do not believe there is sound science. MR. SHORR: We're getting to our last few 22 minutes, and all the questions seem to be about theory 23 and I know she's a fact witness, and I want to 24 there's some key fact questions you want to finish up 25 on. TSG Reporting - Worldwide (877)-702-9580 if Confidential Page 369 1 2 Q. BY MS. SCOLNICK: And is it a fair statement that Nutella on its own is a low nutrient food? 3 A. I don't recommend Nutella to be used on its 5 Q. Right. 6 A. Nutella does contain nutrients, however. 7 Q. But is it 4 8 9 own. Do you Do you Is there such a term as a low nutrient food? A. I believe you're getting at empty calorie; 10 and I would not classify Nutella as empty calorie the 11 way I would other foods. 12 13 Q. Right. You said this morning that sweetened beverages are empty calories? 14 A. Yes. 15 Q. But Nutella is 16 Is it a fair statement to say Nutella is low nutrient caloric food? 17 A. 18 For the record, carbohydrate, protein, and fat 19 20 21 I would not characterize it that way. are nutrients. Q. Would you characterize Nutella as a high nutrient food? 22 A. No. 23 Q. In the 24 A. And the terminology would be nutrient dense. 25 MS. SCOLNICK: Nutrient dense. TSG Reporting - Worldwide Thank you. (877)-702-9580