Allegations of Misleading Advertising: Burger King and Other Food Companies Face Legal Scrutiny

Advertising in the food industry has a history of enhancing the visual appeal of products, often portraying them as larger, juicier, or crispier than their actual form. However, this embellishment is increasingly being called into question as potentially deceptive, leading to a rising number of legal actions against companies.

Recently, Burger King found itself at the center of such controversy. A federal judge in Florida in August chose not to dismiss a class-action lawsuit against the fast-food giant, which alleges that the company’s advertising inaccurately represents the meat content in its Whopper burgers and other menu items.

Burger King is not alone in facing these legal challenges. According to Perkins Coie, a law firm that monitors class-action lawsuits, 214 cases were filed against food and beverage companies in 2022, and 101 have already been filed in the first half of this year. This marks a significant escalation compared to the 45 cases filed in 2010.

Pooja Nair, a partner at the Beverly Hills-based law firm Ervin Cohen and Jessup, notes that a surge in class-action lawsuits against food and beverage companies began to flood federal courts in recent years. Initial claims focused on snack chip manufacturers allegedly not filling their bags completely, although most of these claims were subsequently dismissed. Since 2019, numerous lawsuits have been filed, accusing companies of misleading consumers with “vanilla-flavored” labeling that doesn’t contain pure vanilla or vanilla beans.

These cases are often filed in federal courts in New York, California, and Illinois, where they are less likely to be dismissed outright, according to Nair. The class-action suit against Burger King, filed in Miami where its parent company is headquartered, is one of several initiated by attorney James Kelly. He has comparable lawsuits pending in New York against Wendy’s, McDonald’s, and Taco Bell.

In many instances, companies opt to settle before lawsuits are formally filed to avoid the financial and temporal costs of litigation, Nair added. For example, A&W and Keurig Dr. Pepper recently agreed to a $15 million settlement over allegations that they had misled consumers with the labeling “Made with aged vanilla” on soda cans, which actually contained synthetic flavoring.

Jordan Hudgens, CTO of Arizona-based Dashtrack, which specializes in developing restaurant websites, believes that rising consumer awareness is a driving factor behind these legal trends. Social media can rapidly disseminate images of subpar food products, thereby alerting other potential plaintiffs. Additionally, increased focus on health and nutrition is prompting consumers to scrutinize advertising claims more closely.

Inflation may also be a contributing factor, according to Ben Michael, an attorney with Michael and Associates in Austin, Texas. Restaurants may be reducing portion sizes to manage costs, but often neglect to update their marketing or menu information to reflect these changes, leaving them vulnerable to legal action.

In the specific case against Burger King, plaintiffs from multiple states filed a lawsuit in March 2022, alleging that the advertised burgers are approximately 35% larger—with twice the meat—than what is actually served. Burger King has contested these allegations, asserting that its advertising is consistent with the product it serves nationwide.

U.S. District Judge Roy Altman in late August partially dismissed the plaintiffs’ claims, ruling that television and online ads do not constitute a “binding offer” as they lack price or product information. However, he allowed the claims of negligent misrepresentation to proceed, as well as the argument that menu board images could represent a binding offer.

The legal outcomes of these cases remain uncertain. Nair notes that lawsuits against fast-food companies are challenging to win. Given the inherent variability in fast-food items, some may indeed resemble their advertised images more closely than others. No definitive guidance exists on the matter, as the U.S. Supreme Court has not ruled on these issues, leaving them to be adjudicated on a case-by-case basis.

Jeff Galak, an associate professor of marketing at Carnegie Mellon University’s Tepper School of Business, suggests that these lawsuits might eventually compel companies to exercise greater caution in their advertising. However, such prudence may come at the cost of potentially reduced sales.

As Galak articulates, the ongoing issue is identifying the boundary between permissible exaggeration and deceitful misrepresentation in advertising. Companies continue to navigate this gray area, often pushing the limits of what is legally acceptable.

Frequently Asked Questions (FAQs) about Deceptive Advertising

More about Deceptive Advertising

• Burger King Faces Lawsuit Over Meat Content in Ads
• Rising Trend of Deceptive Advertising Lawsuits
• Perkins Coie’s Insights on Class Action Suits
• A&W and Keurig Dr Pepper Settlement
• Consumer Awareness Impact on Advertising
• Legal Nuances in Fast Food Advertising Lawsuits