Over many years, advertisements have glamourized the subject of their visuals, making food appear larger, juicier and more appetising than in reality. Nonetheless, numerous consumers have begun to oppose these seemingly deceptive adverts, subsequently instigating a swell in related lawsuits.
Recently, Burger King found itself in the spotlight when a federal judge in Florida declined to waive a class-action lawsuit in August. The litigation contends the fast-food company’s advertisements falsely suggest a greater quantity of meat within its Whopper hamburger and other items.
Burger King, however, isn’t alone in this controversy. The law firm Perkins Coie that monitors class action suits disclosed a significant upsurge in these lawsuits. The firm recorded 214 suits against food and beverage firms in 2022 and 101 in the first six months of the following year. This is a substantial escalation from the 45 suits filed in 2010.
A barrage of class-action lawsuits, according to Pooja Nair—a partner in the Beverly Hills-based law firm Ervin Cohen and Jessup who serves food and beverage corporations—started to envelop federal courts a few years ago. These primarily focused on dishonest advertising proceedings against snack chip manufacturers for not filling bags. Since 2019, hundreds of suits have claimed deceit by labeling products as “vanilla-flavoured” but lacking genuine vanilla or vanilla beans.
Lawyers largely bring about these cases in the courts of New York, California, and Illinois, Nair noted. These federal courts are less prone to outright dismissal of the cases. Although the case against Burger King emerged in Miami, the attorney representing it has similar pending cases in New York against Wendy’s, McDonald’s, and Taco Bell.
To avoid substantial resources fighting lawsuits in court, companies often opt to arbitrate before the case proceeds to court. Previously this summer, A&W and Dr. Keurig Pepper accepted to pay $15 million to reconcile allegations of falsely advertising their sodas with the label “Made with aged vanilla.”
Some believe that the surge in these lawsuits is due to increased customer awareness. With health and nutrition becoming more visible to the public, consumers are beginning to scrutinize product claims more carefully. Online platforms can swiftly circulate a photo of an underwhelming sandwich, potentially alerting other potential litigants.
Inflation is another factor as it could be forcing restaurants to diminish their portion sizes to mitigate costs. Ben Michael, an attorney with Michael and Associates, warns restaurants that failing to update their menus or consult their marketing departments when making these changes could put them at risk of legal action.
In the case of Burger King, plaintiffs from various states indicted the company for inflating their burgers’ size by nearly 35% in their advertisements and store menu boards. Their grievances hinge on the belief that they were misled into purchasing the sandwiches.
A spokesperson from Burger King countered these accusations, asserting that the beef patties presented in their advertisements correspond to the ones served nationwide.
While television and online ads were not considered a “binding offer” by U.S. District Judge Roy Altman, he did suggest that the plaintiffs could argue that the images displayed on the menu were. Thus, providing some hope to the plaintiffs.
According to Nair, the outcome of the lawsuit is still uncertain. She noted that lawsuits against fast-food corporations have heretofore been challenging to win since every sandwich differs and may vary in its resemblance to the images displayed. Currently, there isn’t any clear direction from the U.S. Supreme Court on these matters, leaving the verdict to individual court discretion.
The result of these lawsuits will likely cause companies to exercise more caution with their adverts. However, this will tread a fine line, as Jeff Galak—an associate professor of marketing at Carnegie Mellon University’s Tepper School of Business—explained, companies are always aiming to push the boundary between “puffery” and “deceit”. And more realistic portrayals of products could potentially affect sales.