Food ads have long made their subjects look bigger, juicier and crispier than they are in real life. But some consumers say those mouth-watering ads can cross the line into deception, and that’s leading to a growing number of lawsuits.
Burger King is the latest company in the cross hairs. In August, a federal judge in Florida refused to dismiss a class action lawsuit that claims Burger King’s ads overstate the amount of meat in its Whopper burger and other sandwiches.
But Burger King is far from the only one. Perkins Coie, a law firm that tracks class action suits, said 214 were filed against food and beverage companies in 2022 and 101 were filed in the first six months of this year. That’s a huge increase from 2010, when just 45 were filed.
Pooja Nair, who represents food and beverage companies as a partner with the Beverly Hills, California-based law firm Ervin Cohen and Jessup, said waves of class action lawsuits started hitting federal courts a few years ago.
Some of the first were false advertising claims against chip makers for not completely filling the bags; most of those were dismissed, she said. Since 2019, hundreds of lawsuits have been filed asserting that consumers are being misled by “vanilla-flavoured” products that don’t contain pure vanilla or vanilla beans.
Plaintiffs’ attorneys largely file the cases in the same courts in New York, California and Illinois, she said, where federal courts are less likely to dismiss them outright.
While the case against Burger King was filed in Miami, where its parent company has its US headquarters, one of the attorneys who filed it has similar cases pending in New York against Wendy’s, McDonald’s and Taco Bell. That attorney, James Kelly, didn’t respond to a message seeking comment.
Companies often settle cases before a lawsuit is filed instead of spending the time and money fighting it in court, Nair said. Earlier this summer, A&W and Keurig Dr Pepper agreed to pay $15 million to settle claims they had deceived customers with the label, “Made with aged vanilla” on cans of soda which actually used synthetic flavouring.
Others say growing consumer awareness is behind the trend. Social media can instantly make a photo of a soggy sandwich go viral, informing other potential plaintiffs, said Jordan Hudgens, the chief technology officer for Dashtrack, an Arizona-based company that develops restaurant websites.
Rising awareness of health and nutrition is also causing people to question product claims, he said.
Ben Michael, an attorney with Michael and Associates in Austin, Texas, said inflation also might be making restaurants a target right now, since some may have cut back on portion sizes to cut costs.
