Food advertisements have long made their subjects look bigger, juicier and crisper than they are in real life. But some consumers say those mouthwatering ads can cross the line into fraud, and that’s leading to a growing number of lawsuits.
Burger King is the latest company in the crosshairs. In August, a federal judge in Florida refused to dismiss a class-action lawsuit that claimed Burger King’s ads exaggerated the amount of meat in its Whopper Burger and other sandwiches.
But Burger King is far from the only one. Perkins Co., a law firm that tracks class action suits, said 214 lawsuits were filed against food and beverage companies in 2022 and 101 in the first six months of this year. That’s a huge increase from 2010, when only 45 were filed.
Pooja Nair, who represents food and beverage companies as a partner with the Beverly Hills, Calif.-based law firm Aaron Cohen & Jessup, said waves of class-action lawsuits began hitting federal courts a few years ago. .
First there were false advertising claims against some snack chip manufacturers for not filling the bag completely. Most of them were fired, he said. Since 2019, hundreds of lawsuits have been filed claiming that consumers are being misled by “vanilla-flavored” products that do not contain pure vanilla or vanilla beans.
Plaintiffs’ lawyers largely file cases in the same courts in New York, California and Illinois, he said, where federal courts are less likely to reject them outright.
While the lawsuit against Burger King was filed in Miami, where its parent company has its U.S. headquarters, one of the lawyers who filed it has similar lawsuits pending in New York against Wendy’s, McDonald’s and Taco Bell. are That attorney, James Kelly, did not respond to a message seeking comment.
Nair said companies often settle cases before filing lawsuits rather than spend time and money fighting them in court. Earlier this summer, A&W and Keurig Dr Pepper agreed to pay $15 million to settle claims that they misled consumers with a “made with aged vanilla” label on cans of soda. which actually used artificial flavoring.
Others say that growing consumer awareness is behind this trend. Social media can quickly make a photo of a soggy sandwich go viral, alerting other potential plaintiffs, said Jordan Hudgens, chief technology officer at DashTrac, an Arizona-based company that develops restaurant websites.
Growing awareness about health and nutrition is also leading people to question product claims, he said.
Ben Michael, a lawyer with Michael & Associates in Austin, Texas, said inflation is also targeting restaurants now, as some cut portion sizes to cut costs.
“Unfortunately, many businesses make these changes without consulting their marketing department or updating their menus to represent the new portion sizes and ingredients,” he said. “That leaves them open to the kinds of cases we’re seeing more of.”
In the Burger King case, plaintiffs from multiple states filed suit in March 2022, claiming that advertisements and photos on store menu boards showed burgers with twice as much meat as the burgers they bought —- almost 35% are older. The plaintiff said that if he had known the actual size, he would not have bought the sandwich.
A Burger King spokesperson said the plaintiff’s claims are false, and that the beef patties in its ads are the same as those served across the United States.
In late August, U.S. District Judge Roy Altman dismissed some of the plaintiffs’ claims. It ruled that the plaintiffs could not argue that the television or online ads constituted a “binding offer” by Burger King, because they did not list price or product information. But he said the plaintiffs could argue that the images on the menu boards represented a binding offer. It also did not rule out negligent misrepresentation claims.
Nair said it was not clear how the case would be resolved. In general, he said, lawsuits against fast-food giants are difficult to win. Unlike boxes of cereal or soda, every sandwich is different, and some look more like the pictures on the menu boards than others. The US Supreme Court has not considered these issues, so they are decided on a court-by-court basis.
In 2020, a federal appeals court upheld the dismissal of the case against Duncan. The plaintiffs said the company misled them when it said their wrappers contained Angus steak. They actually contained ground meat.
Ultimately, the Burger King case could cause Case and other companies to be more careful with their advertising, said Jeff Galk, an associate professor of marketing at Carnegie Mellon University’s Tepper School of Business. But this may come at a price; More realistic images can lead to fewer sales.
“There is a legal line. When is it fiction and when is it fraud?” Galak said. “Companies always try to ride against that line.”