Food advertisements have a long history of exaggerating the appearance of their products, making them look more enticing than they actually are. However, some consumers argue that these mouthwatering ads can be deceptive, leading to a rise in lawsuits against food and beverage companies.
One such company facing legal action is Burger King. In August, a federal judge in Florida declined to dismiss a class action lawsuit alleging that Burger King’s ads misrepresented the amount of meat in their Whopper burgers and other sandwiches.
But Burger King is not alone in facing these lawsuits. According to Perkins Coie, a law firm that tracks class action suits, there were 214 cases filed against food and beverage companies in 2022, and 101 cases filed in the first half of this year. This represents a significant increase from 2010, which saw just 45 cases filed.
Pooja Nair, a partner at the law firm Ervin Cohen and Jessup, which represents food and beverage companies, explains that these class action lawsuits started gaining traction in federal courts a few years ago. Initially, there were false advertising claims against chip makers for under-filled bags, but most of these cases were dismissed. Since 2019, however, there have been numerous lawsuits claiming that consumers are being deceived by “vanilla-flavored” products that do not contain genuine vanilla or vanilla beans.
These lawsuits are predominantly filed in New York, California, and Illinois, where federal courts are less likely to dismiss them outright, according to Nair. Although the Burger King case was filed in Miami, where the company’s U.S. headquarters is located, the attorney involved has similar cases pending against Wendy’s, McDonald’s, and Taco Bell in New York. The attorney, James Kelly, did not respond to a request for comment.
Nair also notes that companies often choose to settle these cases before a lawsuit is filed, rather than going to court. She cites the recent example of A&W and Keurig Dr Pepper, who agreed to pay $15 million to settle claims of deceiving customers with the label, “Made with aged vanilla,” on cans of soda that in reality used synthetic flavoring.
Others attribute the rise in these lawsuits to growing consumer awareness, particularly through social media. Instantly sharing a photo of a disappointing sandwich can quickly inform other potential plaintiffs, says Jordan Hudgens, the CTO of Dashtrack, a company specializing in developing restaurant websites. Additionally, the increasing focus on health and nutrition has made people more skeptical of product claims.
Inflation could also be a factor in targeting restaurants at this time, suggests Ben Michael, an attorney in Austin, Texas. Some restaurants may have reduced portion sizes to cut costs without updating their menus or consulting their marketing departments, leaving them vulnerable to lawsuits.
In the case of Burger King, plaintiffs in multiple states filed a lawsuit in March 2022, claiming that the advertisements and photos on store menu boards showed burgers that were about 35% larger and contained double the meat than the ones they actually purchased. The plaintiffs argue that they would not have bought the sandwiches if they had known their actual size.
A spokesperson for Burger King denies the plaintiffs’ claims, stating that the beef patties in their ads are the same as the ones served across the U.S.
In late August, U.S. District Judge Roy Altman dismissed some of the plaintiffs’ claims. He ruled that television or online ads cannot be considered a “binding offer” from Burger King because they do not include pricing or product information. However, he allowed the plaintiffs to argue that the images on menu boards constituted a binding offer. Negligent misrepresentation claims were not dismissed.
The outcome of the case remains uncertain, according to Nair. She explains that these lawsuits against fast food giants are typically challenging to win. Unlike packaged products like cereal or soda, every sandwich is unique and may vary in resemblance to the images on menu boards. The U.S. Supreme Court has yet to address these issues, leading to decisions being made on a case-by-case basis.
In 2020, a federal appeals court upheld the dismissal of a lawsuit against Dunkin’, in which the plaintiffs claimed they were deceived about the presence of Angus steak in their wraps, which were actually made with ground meat.
Ultimately, the Burger King case and similar lawsuits could prompt companies to be more cautious with their advertisements, says Jeff Galak, an associate professor of marketing at Carnegie Mellon University. However, this caution may come at the expense of lower sales, as more realistic photos may not be as visually appealing.
“There is a legal line between puffery and deceit,” Galak explains. “Companies are always trying to toe that line.”
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