Food ads are in the crosshairs as Burger King, others face lawsuits for false advertising

Food advertisements have often depicted their products in a more appealing light, showcasing them as larger, juicier, and crisper than their actual real-life counterparts. Yet, there is a growing sentiment among consumers that these visually enticing ads can sometimes venture into the realm of deception. This sentiment has translated into a surge of lawsuits being filed against various food and beverage companies.

Burger King finds itself in the midst of this legal scrutiny. Recently, a federal judge in Florida declined to dismiss a class action lawsuit against Burger King. The lawsuit alleges that the advertisements for Burger King’s Whopper burger and other sandwiches exaggerate the amount of meat present in the products.

While Burger King stands as a prominent example, it is by no means an isolated case. Perkins Coie, a legal firm that monitors class action suits, reported a significant increase in such lawsuits. In 2022, 214 lawsuits were filed against food and beverage companies, with an additional 101 filed in the first half of the current year. This represents a marked escalation from 2010, when only 45 such cases were reported.

The trend of class action lawsuits commenced a few years ago, with some of the initial cases targeting snack chip manufacturers for alleged false advertising regarding underfilled bags. Although many of these cases were dismissed, the landscape shifted around 2019. Subsequently, a multitude of lawsuits emerged, alleging that consumers were being misled by products labeled as “vanilla-flavored” that lacked authentic vanilla or vanilla beans.

Plaintiffs’ lawyers tend to file these cases in specific courts, primarily in New York, California, and Illinois, where the likelihood of outright dismissal by federal courts is lower. This strategy increases the chances of cases proceeding to the next stage.

Despite Burger King’s lawsuit originating in Miami, where its parent company’s U.S. headquarters are located, the attorney responsible for filing this suit is simultaneously pursuing similar cases against Wendy’s, McDonald’s, and Taco Bell in New York. This attorney, James Kelly, did not provide a response to requests for comments.

In many instances, companies opt to settle these cases preemptively rather than engage in lengthy and costly court battles. For instance, A&W and Keurig Dr Pepper recently agreed to pay $15 million to settle claims that their labeling of “Made with aged vanilla” on soda cans was deceptive, as synthetic flavoring was used instead.

Growing consumer awareness, fueled by social media’s ability to rapidly circulate images of subpar products, has contributed to this trend. Jordan Hudgens, the chief technology officer at Dashtrack, a company specializing in restaurant website development, pointed out that instant sharing of experiences informs potential plaintiffs. Additionally, heightened consciousness regarding health and nutrition prompts consumers to critically assess product claims.

Ben Michael, an attorney at Michael and Associates in Austin, Texas, suggests that inflation could be prompting restaurants to become more susceptible to lawsuits. As some restaurants potentially reduce portion sizes to cut costs, they might fail to update menus or consult their marketing departments. Consequently, legal vulnerabilities increase.

The specific case against Burger King was initiated in March 2022 by plaintiffs from various states. They alleged that advertisements and menu board images depicted burgers that were about 35% larger and contained twice the meat compared to the actual products they purchased. The plaintiffs contended that they would not have made these purchases had they known the accurate sizes.

Burger King refuted these claims, asserting that the beef patties in their ads are consistent with what is served across all their U.S. outlets. In late August, U.S. District Judge Roy Altman dismissed certain claims put forth by the plaintiffs. He ruled that TV and online ads could not be considered a “binding offer” from Burger King due to the absence of price or product information. However, he did concede that images on menu boards might constitute a binding offer, and he upheld claims of negligent misrepresentation.

The eventual resolution of the Burger King case remains uncertain. Historically, lawsuits against fast-food giants have faced challenges. Unlike packaged products like cereal or sodas, sandwiches can greatly vary in appearance, potentially resembling menu board images to differing degrees. The U.S. Supreme Court has yet to provide a definitive stance on these matters, leading to case-by-case determinations.

In 2020, a federal appeals court upheld the dismissal of a lawsuit against Dunkin’, where the plaintiffs alleged deception regarding the use of Angus steak in wraps that actually contained ground meat.

Ultimately, the ongoing cases involving Burger King and other companies could encourage more cautious advertising practices. This shift, however, might come at a cost—more accurate depictions could result in reduced sales. The line between puffery and deceit remains a point of legal contention, pushing companies to tread carefully in their advertising endeavors.

Frequently Asked Questions (FAQs) about Deceptive Food Advertising

More about Deceptive Food Advertising

• Burger King faces lawsuit over deceptive ads
• Rise in class action suits against food companies
• Deceptive advertising challenges
• Consumer awareness impact on lawsuits
• A&W and Keurig Dr Pepper settlement
• Legal uncertainties in fast-food lawsuits
• Advertising balance between accuracy and appeal