For many years, the glamourous portrayal of food in advertisements has been seen as a harmless embellishment. However, the appetizingly oversized, tantalizingly juicy, and impossibly crispy images of food fare are now facing increasing scrutiny as consumers are starting to view the discrepancy between advertisement and reality as deceptive. This rising trend of perceived dishonesty has resulted in a surge in lawsuits.
The most recent company to be engulfed in this rising legal wave is fast-food giant, Burger King. A Florida-based federal judge refused to dismiss an August class action suit that accuses Burger King of over-representing the amount of meat present in their iconic Whopper burger and other sandwich offerings in their ads.
However, Burger King is not a lone offender in this alleged act of deception. Perkins Coie, a law firm that specializes in tracking class-action suits, reported an unprecedented spike in lawsuits against food and beverage companies. The year of 2022 alone saw a staggering 214 suits filed with the first half of the current year already recording 101 suits. To highlight the exponential growth of such cases, consider that in 2010, there were merely 45.
Pooja Nair, a partner at the Beverly Hills-based law firm Ervin Cohen and Jessup, explained that the tide of such class-action suits began a few years ago. Initially, snack chip manufacturers were targeted for allegedly not filling their bags to the brim; however, most of these cases were dismissed.
The current trend of accusations and lawsuits revolves predominantly around misleading representation of “vanilla-flavored” products. Hundreds of suits assert that customers were deceived by products not containing pure vanilla or vanilla beans as insinuated in advertising.
The majority of plaintiffs choose federal courts in New York, California, and Illinois where there are higher chances of acceptance.
The case against Burger King unfolded in Miami, where its parent company is headquartered. Also being sued on the same grounds in New York are Wendy’s, McDonald’s, and Taco Bell.
It is more economically feasible for companies to amicably settle disputes before they escalate to a lawsuit. A recent illustration of this approach was when A&W and Keurig Dr Pepper resolved to pay $15 million in settlement over claims of deceiving customers with “Made with aged vanilla” labels on soda cans which utilized synthetic flavoring instead.
Consumer awareness plays a considerable role in this surge of lawsuits. The power of social media enabling a picture of a disappointing sandwich to reach millions, incites potential plaintiffs. Another factor is the growing consciousness about health and nutrition, prompting people to question the authenticity of advertising claims.
An attorney from Texas echoed an economic perspective, stating that inflation could be forcing restaurants to cut back on portion sizes, making them attractive legal targets.
In the case of Burger King, plaintiffs from various states filed a suit in March 2022 alleging deceptive advertisement that depicted burgers larger by approximately 35% – with double the meat – than the reality. Burger King categorically refuted these accusations insisting the patties used in their ads mirror the ones served nationwide.
The final outcome of the Burger King lawsuit remains uncertain. It generally remains challenging to emerge victoriously against fast-food behemoths. Each sandwich’s individuality makes it even harder to prove deceit.
In the past, a lawsuit against Dunkin’ fell flat when the plaintiffs unsuccessfully claimed the company falsely advertised their wraps containing Angus steak instead of ground meat.
These growing legal disputes could instigate companies to tread more cautiously with their ad campaigns. However, the cost might be steep; more realistic photos could potentially2 lead to a dip in sales.
The dilemma lies in striking a balance between florid advertisement language or “puffery” and deceit. Jeff Galak, an associate professor of marketing at Carnegie Mellon University’s Tepper School of Business, emphasized that companies are always teetering on the blurred lines of this challenge.
