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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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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NO. 3:11 CV 00205 H CAB
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IN RE FERRERO LITIGATION
________________________
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VIDEOTAPED DEPOSITION OF CONNIE EVERS
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C O N F I D E N T I A L
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Taken in behalf of Plaintiffs
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Tuesday, July 26, 2011
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TSG JOB NO. 39549
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEW JERSEY
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TRENTON DIVISION
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MARNIE GLOVER, individually
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and on behalf of all others
7
similarly situated,
8
9
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11
Plaintiff,
v.
No. 11 CV 01086
FERRERO USA, INC.,
Defendant.
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VIDEOTAPED DEPOSITION OF CONNIE EVERS
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C O N F I D E N T I A L
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Taken in behalf of Plaintiffs
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Tuesday, July 26, 2011
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BE IT REMEMBERED THAT, pursuant to the Federal
2
Rules of Civil Procedure, the deposition of CONNIE
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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.
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Oak Street, Suite 500, in Portland, Oregon.
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THE WESTON FIRM
10
BY MR. JACK FITZGERALD
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888 Turquoise Street
12
San Diego, California 92109
13
On behalf of Plaintiffs
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DAVIS & TALIAFERRO
18
BY MR. GREG DAVIS
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7031 Halcyon Park Drive
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Montgomery, Alabama 36117
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On behalf of Plaintiff Glover
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VIDEOGRAPHERS:
Ms. Anna Austin, Mr. Mick Irwin
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APPEARANCES (CONT.)
SCOTT & SCOTT
3
BY MS. JUDY SCOLNICK
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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
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600 Cottontail Lane
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Somerset, New Jersey 08873
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On behalf of Ferrero USA Inc.
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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
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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
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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
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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
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3
9
11
10
6
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ll
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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
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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
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13
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19
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22
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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.
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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?
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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.
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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
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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?
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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.
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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
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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
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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
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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
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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.
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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?
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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.
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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?
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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.
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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.
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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.
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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
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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.
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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,
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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
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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...
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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.
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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.
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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.
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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
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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
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11
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6
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11
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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?
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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.
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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:
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It's 537 through 541.
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25
MR. SHORR:
Let's take a break before we get to
the next exhibit.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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?
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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.
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It's not
somebody I know personally.
12
13
Okay.
regularly, then?
10
11
I
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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"
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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
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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
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quantitative serving size, does it?
2
A.
It says a dab.
3
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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
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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
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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
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Oh, okay.
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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...
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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.
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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
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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?
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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.
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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.
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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.
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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
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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.
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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
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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
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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?
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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:
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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
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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.
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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?
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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
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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
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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.
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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
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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
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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.
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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.
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f
3
l
l
'
l
'
d
6
f
9
f
f
11
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l
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1
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22
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2
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l
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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.
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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.
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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
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I'm just going to
It's Glover versus
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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
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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.
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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.
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