Burgers and tacos don’t look like they do in ads. Lawsuits are trying to change that

Originally Published: 23 SEP 23 03:03 ET By Danielle Wiener-Bronner, CNN

New York (CNN) — When it comes to food advertising, what you see is rarely what you get. A flurry of recent lawsuits wants to change that.

Over the past few years, lawyers have been bringing class action suits against fast food companies, alleging that they’re misrepresenting food in their marketing.

Lawyers James Kelly and Anthony Russo, in particular, have been leading the charge, bringing cases against Taco Bell, Wendy’s, McDonald’s, Burger King and Arby’s. These companies use ads that don’t match up with their actual food, the suits allege.

As evidence, the complaints feature images of food marketing alongside shots of their real-life counterparts. In the ads, burgers look tall, heaped with meat and cheese, topped with golden, rounded buns. But in the photos of burgers bought from a real fast food location, they’re flat, with meat and cheese barely peeking out of limp, white buns. Tacos are no different: In Taco Bell’s ads, Crunchwraps look hearty and plump. In photos in the lawsuit, they look flat and nearly empty. The suits are ongoing.

“We saw a record number of food litigation lawsuits filed from 2020 to 2023, with hundreds of new suits every year,” said Tommy Tobin, a lawyer at Perkins Coie and Lecturer at UCLA Law, adding that “food litigation is a fast-growing area of law.”

The explosion has been largely driven by the efforts of a handful of lawyers, including Russo and Kelly, said Bonnie Patten, executive director of Truth in Advertising, a nonprofit organization that focuses on protecting consumers from false advertising.

Their cases focus on quantity, she said, essentially arguing that food in ads appears more bountiful than what customers actually get. Other lawyers, like Spencer Sheehan, focus on how food is described. Sheehan, a New York lawyer, has filed hundreds of class action suits focusing on misleading words on packaged foods — like use of the word “vanilla” on foods made with little or no actual vanilla.

Major chains have also been targeted for how they describe food. Last year a class action suit was brought against Starbucks claiming that the chain is misleading buyers of its “Refreshers” beverages by naming them for ingredients they don’t have. The complaint states that, for example, “the Mango Dragonfruit and Mango Dragonfruit Lemonade Refreshers contain no mango,” and that in fact “all of the products are predominantly made with water, grape juice concentrate, and sugar.” Starbucks argued, among other things, that the fruits mentioned indicate a flavor rather than an ingredient.

“The allegations in the complaint are inaccurate and without merit,” a Starbucks spokesperson said in a statement, adding, “we look forward to defending ourselves against these claims.”

For a judge or jury to side with the plaintiffs in false advertising claims, lawyers have to successfully make the case that the ads would trick a “reasonable consumer,” Tobin, explained.

“Under this standard, a court asks whether a reasonable consumer would be misled by the product’s marketing or labeling,” he said.

The courts will have to draw the line between false advertising and just, well, advertising — which might be trickier than it sounds.

What is a reasonable consumer?

Burger King, in a bid to dismiss the lawsuit against it, argued that its ads are fair.

“Reasonable consumers viewing food advertising know” that food in ads “has been styled to make it look as appetizing as possible,” Burger King argued in a recent filing. That “innate” knowledge, plus the fact that a Whopper patty is always made with a quarter pound of beef, as promised, means that the ads are fine, according to Burger King.

“The plaintiffs’ claims are false,” a Burger King spokesperson said in a statement about the lawsuit. “The flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of Whopper sandwiches we serve to guests nationwide.” Arby’s, McDonald’s, and Taco Bell did not respond to requests for comment. Wendy’s declined to comment, citing the ongoing litigation.

For Russo, that argument doesn’t cut it. He’s more concerned with what he calls the “common-sense eyeball test.” The fast food chains targeted in his suit, he said, are failing.

“If you look at what their advertisements are showing, and you look at what on a regular basis, every consumer is getting … [there’s] a glaring disparity,” he said. “You could talk about weight … you could talk about volume, those are all the things the experts get into,” he said. But if the image is drastically different from the product, he argues, those details don’t matter.

In the Burger King case, a judge recently agreed to punt the question of what is “reasonable” to a jury, refusing to dismiss the case in full as Burger King requested.

Starbucks will also have to face many of the claims brought against it in the class action. “Plaintiffs have adequately alleged that a significant portion of the general consuming public could be misled by the names of the at-issue beverages,” a recent order states.

What you see is not what you get

For Patten, a reasonable consumer is an “average consumer.” The legal system, she said, often expect more from a reasonable consumer than she would from an average one.

“Trial courts tend to have a very high opinion of who the reasonable consumer is,” she said. “And I think as a result of that, will dismiss a lot of these types of class actions, taking the position that the reasonable consumer of course knows that this type of advertising exaggerates the quality and quantity of food.”

But Patten has heard from many complaining about this specific discrepancy, between how much food they expect due to advertising, and how much food they actually get.

“We get it for burgers, we’ve gotten it for buckets of chicken, all sorts of different kinds of fast food,” she said.

When it comes to allegations of false advertising, there are more egregious questions than whether a taco on the screen matches a taco in the hand. And Patten’s not convinced that class actions are the way to go — if they’re not dismissed, they often get settled, offering the defendant certain protections and giving consumers a small sum of cash, while their lawyers walk away with a larger bundle.

But with people watching their budgets, it’s worth examining whether customers are getting as much food as they expect from major fast food chains.

When people are “using their limited resources to purchase this, and then they’re not being provided with the quantity of food they’re expecting — that is an issue, no doubt.”

The suits, and the attention they’ve received, can help inform the public of what to really expect, Patten said.

They “can help educate consumers and make more savvy purchasers of their dinners,” she said. “The best defense against deceptive marketing is an educated consumer.”

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