Food ads have long made their subjects appear larger, juicier and crunchier than they are in real life. But some consumers say the coveted ads could amount to deception, prompting a growing number of lawsuits.
Burger King is the latest company to step into the spotlight. In August, a federal judge in Florida refused to dismiss a class-action lawsuit alleging that Burger King advertised inflated the amount of meat in its Whopper burger and other sandwiches.
But Burger King is far from the only one. Law firm Perkins, which tracks class actions, said 214 class actions were filed against food and beverage companies in 2022, with 101 filed in the first six months of this year. This is a significant increase from 2010, when only 45 applications were filed.
Pooja Nair, a partner at law firm Ervin Cohen and Jessup in Beverly Hills, Calif., who represents food and beverage companies, said the wave of class action lawsuits began a few years ago in federal court.
The first was false advertising allegations against chipmakers because they didn’t quite fill their bags; most of them were fired, she said. Since 2019, hundreds of lawsuits have been filed alleging that consumers were misled by “vanilla-flavored” products that did not contain pure vanilla or vanilla beans.
Plaintiffs’ attorneys have primarily filed suits in the same courts in New York, California and Illinois, and federal courts are unlikely to dismiss them outright, she said.
While the case against Burger King was filed in Miami, where its parent company has its U.S. headquarters, a lawyer who filed the case has similar cases pending against Wendy’s, McDonald’s and Taco Bell in New York. The attorney, James Kelly, did not respond to a message seeking comment.
Instead of spending time and money fighting in court, Nair said companies often settle cases before filing lawsuits. Earlier this summer, A&W and Keurig Dr Pepper agreed to pay $15 million to settle allegations that they defrauded customers by labeling canned sodas “made with aged vanilla” that actually used Synthetic fragrance.
Others say increased consumer awareness is behind the trend. Jordan Hudgens, chief technology officer at Dashtrack, an Arizona-based restaurant website development company, said social media can instantly send a photo of a soggy sandwich going viral, informing other potential plaintiffs.
Increased health and nutrition awareness has also called into question product claims, he said.
Inflation could also make restaurants immediate targets, as some may have reduced portion sizes to keep costs down, said Ben Michael, an attorney at Michael LLP in Austin, Texas.
“Unfortunately, many businesses are making these changes without consulting their marketing departments or updating their menus to represent the new serving sizes and ingredients,” he said. “It opens them up to more lawsuits that we’ve already seen.”
In the Burger King case, plaintiffs in multiple states filed a lawsuit in March 2022 alleging that ads and photos on store menu boards showed burgers that were roughly 35%__ larger than the ones they bought, with twice the meat__. The plaintiffs said they would not have purchased the sandwiches if they had known the actual size of the sandwiches.
A Burger King spokesman said the plaintiff’s claim was false and that the beef patty it advertised was the same as it is served across the U.S.
In late August, U.S. District Judge Roy Altman dismissed some of the plaintiffs’ claims. He ruled that plaintiffs could not argue that the TV or online ads constituted a “binding offer” from Burger King because they did not list prices or product information. But he said plaintiffs could argue that the images on the menu boards represented binding offers. He also did not dismiss the allegations of negligent misrepresentation.
Nair said it was unclear how the case would be resolved. In general, lawsuits against fast-food giants are hard to win, she said. Unlike boxed cereal or soda, every sandwich is different, and some may look more like the image on a menu board than others. The U.S. Supreme Court has not yet weighed these issues, so they are a court-by-court decision.
In 2020, a federal appeals court upheld the dismissal of the lawsuit against Dunkin’. The plaintiffs allege the company deceived them by claiming their burritos contained Angus steak; they actually contained ground meat.
Ultimately, the Burger King case and other events could lead companies to be more cautious about advertising, said Jeff Galak, an associate professor of marketing at Carnegie Mellon University’s Tepper School of Business. But that could come at a price; more realistic photos could lead to lower sales.
“There’s a legal line. When is it bragging and when is it cheating?” Galak said. “Companies are always trying to go against that line.”