Fast Food ‘False Advertising’ Deemed Puffery, but Class Actions Persist

Fast Food ‘False Advertising’ Deemed Puffery, but Class Actions Persist

Overview


Although the plaintiffs’ class action bar has been filing false advertising claims at a record pace, encouraging news for consumer goods companies has come out of the courts. Companies can take some comfort knowing that broad false advertising claims could be reined in. Wendy’s and McDonald’s recently emerged victorious from a class action lawsuit launched against them in 2022. The plaintiff and the purported class accused the two fast food companies of unfair and deceptive trade practices and falsely advertising the size and appearance of food items on their menus. Stating that the advertising claims in question were mere puffery, the district judge dismissed all claims and denied leave to amend. This thorough decision could signal courts taking a welcomed approach to identifying puffery and thoughtfully analyzing advertising claims.

In Depth


FALSE ADVERTISING

All advertising—regardless of the platform—must comply with basic advertising requirements. First, all advertisements must be true, and all claims made in an advertisement must be adequately substantiated. Claims made in an advertisement include express claims, comparative claims and implied claims, in addition to any claims created by the net impression of the ad.

Generally speaking, “puffery” is a statement or claim a person could not reasonably rely upon—i.e., the “best product in the entire galaxy.” Puffery is a concept in advertising in which advertisers use words or images with the intention of attracting or enticing more consumers to a product, as opposed to intentionally deceiving them about a fact. Puffery is typically acceptable in advertising. Claims that are considered puffery do not require substantiation and cannot be the basis for a successful false advertising claim.

To bring a claim for false advertising, which is an actionable civil claim under Section 43(a) of the Lanham Act and under many state laws that mirror the federal legislation, a plaintiff must generally show the following:

  • The defendant made false, deceptive or misleading statements or claims regarding its products;
  • Actual deception occurred, or at least a tendency to deceive a substantial percentage of the intended audience existed;
  • The deception was material such that it was likely to influence consumer purchase decisions;
  • The advertised goods traveled in interstate commerce; and
  • Injury to the plaintiff was likely.

The plaintiff need not show that it suffered actual injury from the defendant’s allegedly false advertising. Puffery is not considered false advertising, because to be found liable for false advertising, the defendant must convey a specific statement of fact about a product that is false, misleading or deceptive, while puffery conveys a message that could not reasonably be relied upon.

CHIMIENTI V. WENDY’S INTERNATIONAL LLC, ET AL.

In the recently dismissed action, plaintiff Chimienti’s complaint specifically alleged that the companies materially overstated the size of their beef patties and toppings and therefore sold smaller-than-advertised burgers to customers. Chimienti further claimed that the companies used undercooked burger patties in their advertisements because “fully cooked burgers tend to shrink and look less appetizing.” He claimed that the companies’ advertisements damaged customers because “[customers] are receiving food that is much lower in value than what is being promised.”

Both Wendy’s and McDonald’s filed motions to dismiss the complaint in September 2022. They noted that customers “know what they are going to receive when they order a hamburger,” and that “it is common sense that actual food products from a quick service restaurant may not appear identical to their professionally photographed marketing images.”

On September 30, 2023, US District Judge Hector Gonzalez agreed with the companies’ position. He held there was no proof that the fast food giants sold smaller burgers than those advertised to their customers and that Chimienti did not adequately allege that he was injured by the companies’ advertisements, “since he does not allege that he ever saw them, and because he has failed to allege that the advertisements were materially misleading.” Judge Gonzalez cited the companies’ websites, which prominently displayed images of the burgers with the weight and calories of the meals and deemed McDonald’s and Wendy’s advertisements to be mere puffery. In his dismissal order, Judge Gonzalez further stated that the companies make their burgers look more appealing in advertisements just as other companies use models to make products more visually attractive, and he held that the plaintiff here failed to prove that a reasonable consumer would be misled by the advertisements. Thus, the court held that the two companies could continue to run their advertisements that present their burgers as meatier and juicier than they are when served in their restaurants.

TAKEAWAYS

With similar class actions currently pending, this decision is a welcome statement on the presence of puffery in the advertisement of consumer goods. The court’s holding in Chimienti v. Wendy’s is one of many decisions that will hopefully help rein in the aggressive plaintiffs’ class action bar when it comes to false advertising. While this dismissal is helpful for consumer goods companies, corporations should remain diligent in designing their advertising campaigns amid the ever-increasing focus of the plaintiffs’ bar on false advertising claims, and they should ensure that any claims made are backed by sufficient substantiation.