Believing the Hype

You see a commercial on TV showing a product, such as an ice cream sundae or a pair of jeans. The ad uses catchy music and flashy imagery to entice you to buy it now. You reach for your wallet and head out the door.

A good ad is supposed to quickly convert you into a paying customer. But what rules do companies have to follow when they’re trying to hook you in? Do their ads have to be truthful?

That’s what Justin Chimienti wants to know. The New York resident recently bought burgers at Wendy’s and McDonald’s and claims he felt duped when he received smaller portions than he expected from their advertisements. He decided to sue.

In May, Chimienti filed a $50 million class-action lawsuit in a New York federal court against the two fast-food giants, alleging that their misleading ads purposefully overstate the size of their food and the number of toppings to fool customers.

You see a commercial on TV showing a product, such as an ice cream sundae or a pair of jeans. The ad uses catchy music and flashy imagery to tempt you to buy it now. You reach for your wallet and head out the door.

A good ad aims to quickly get you to become a paying customer. But what rules do companies have to follow when they’re trying to hook you in? Do their ads have to be truthful?

That’s what Justin Chimienti wants to know. The New York resident recently bought burgers at Wendy’s and McDonald’s. He claims he felt cheated when he got smaller portions than he expected from their ads. He decided to sue.

In May, Chimienti filed a $50 million class-action lawsuit in a New York federal court against the two fast-food giants. His case alleges that their misleading ads purposefully overstate the size of their food and the number of toppings to fool customers.

“Big companies and corporations need to be held accountable,” says Anthony Russo, one of the lawyers representing Chimienti. “It may seem trivial, but it’s something that can easily get out of control if you don’t keep tabs on it.”

McDonald’s and Wendy’s aren’t the only companies facing these kinds of complaints. Burger King was hit with a similar lawsuit in March, and Subway is fighting a high-profile legal battle over whether its “wild-caught tuna” subs contain any real tuna.

Although the burger cases have attracted a lot of publicity, experts say the plaintiffs face an uphill battle.

“Courts have been really tough on these kinds of food lawsuits,” says Bonnie Patten, executive director of consumer advocacy group Truth in Advertising. “Generally, judges think that nobody in the United States believes that the food you see in those commercials is what you’re going to be handed at the restaurant. And if we all know that, then we can’t be misled by it.”

“Big companies and corporations need to be held accountable,” says Anthony Russo, one of the lawyers representing Chimienti. “It may seem trivial, but it’s something that can easily get out of control if you don’t keep tabs on it.”

McDonald’s and Wendy’s aren’t the only companies facing these kinds of complaints. Burger King was hit with a similar lawsuit in March. Subway also is fighting a high-profile legal battle over whether its “wild-caught tuna” subs contain any real tuna.

The burger cases have attracted a lot of attention. But experts say the plaintiffs face an uphill battle.

“Courts have been really tough on these kinds of food lawsuits,” says Bonnie Patten, executive director of consumer advocacy group Truth in Advertising. “Generally, judges think that nobody in the United States believes that the food you see in those commercials is what you’re going to be handed at the restaurant. And if we all know that, then we can’t be misled by it.”

The debate over truthfulness in ads is nothing new. In 1914, Congress passed the Federal Trade Commission Act, which gave the government legal tools to fight deceptive practices in the marketplace.

In the decades since, many companies in all sorts of industries—not just fast food—have faced punishment for misleading marketing, both by the Federal Trade Commission and the courts. Carmaker Hyundai, for example, agreed in 2004 to pay more than $85 million in a settlement after overstating the horsepower of 1.3 million vehicles. And shoemaker New Balance paid $2.3 million to customers in 2012 after falsely claiming certain sneakers helped burn more calories (see “Advertising in the Courts,” below).

“We want people to be encouraged to bring out the best product to the marketplace,” says Mark Bartholomew, a law professor at the University at Buffalo in New York. “But if people are lying, that’s like a poison infecting the marketplace. So false-advertising [laws are] supposed to clear that poison out of the system.”

These burger lawsuits may be harder to win than some of the nonfood cases, Bartholomew notes, because although we expect car companies to tell us the truth about their vehicles, we’ve become accustomed to exaggerated imagery in fast-food ads.

The debate over truthfulness in ads is nothing new. In 1914, Congress passed the Federal Trade Commission Act. The law gave the government legal tools to fight deceptive sales practices.

In the decades since, many companies have faced punishment for misleading marketing, by both the Federal Trade Commission and the courts. Companies in all sorts of industries, not just fast food, have been hit. For example, carmaker Hyundai agreed in 2004 to pay more than $85 million in a settlement after overstating the horsepower of 1.3 million vehicles. And shoemaker New Balance paid $2.3 million to customers in 2012 after falsely claiming certain sneakers helped burn more calories (see “Advertising in the Courts,” below).

“We want people to be encouraged to bring out the best product to the marketplace,” says Mark Bartholomew, a law professor at the University at Buffalo in New York. “But if people are lying, that’s like a poison infecting the marketplace. So false-advertising [laws are] supposed to clear that poison out of the system.”

These burger lawsuits may be harder to win than some of the nonfood cases, Bartholomew notes. That’s because although we expect car companies to tell us the truth about their vehicles, we’ve gotten used to edited imagery in fast-food ads, he adds.

However, the suits against Burger King, McDonald’s, and Wendy’s are employing a different tactic that could potentially work better, according to Patten, because rather than just complaining about what the food looks like, the plaintiffs are using objective standards to measure what consumers receive. The Burger King complaint, for example, claims that the burgers in the ads are approximately 35 percent larger than what’s actually served.

The lawsuits highlight some of the techniques that food companies use to sell their products. They hire food stylists to make meals look as delicious as possible—and doing that often requires making the product hard to eat or inedible. Stylists may use undercooked burger patties, for example, because they’ll look bigger and juicier than a fully cooked one. Or they might top a dish with shaving cream rather than whipped cream (which could melt during the shoot) or substitute glue instead of milk in a bowl (so cereal doesn’t grow soggy).

A spokesperson for Burger King says the company doesn’t comment on pending litigation, while McDonald’s and Wendy’s didn’t respond to requests for comment. Regarding the lawsuit about Subway’s tuna sandwiches, a spokesperson said that the company uses 100 percent tuna and is confident it will prevail in court.

But the suits against Burger King, McDonald’s, and Wendy’s are using a different tactic that might work better, according to Patten. Rather than just complaining about what the food looks like, the plaintiffs are using objective standards to measure what consumers receive. For example, the Burger King complaint claims that the burgers in the ads are about 35 percent larger than what’s actually served.

The lawsuits highlight some of the methods food companies use to sell their products. They hire food stylists to make meals look as delicious as possible. Doing that often requires making the product difficult or impossible to eat. For example, stylists may use undercooked burger patties. That’s because they’ll look bigger and juicier than a fully cooked one. Or they might top a dish with shaving cream rather than whipped cream (which could melt during the shoot). They might also use glue instead of milk in a bowl (so cereal doesn’t grow soggy).

A spokesperson for Burger King says the company doesn’t comment on pending litigation. McDonald’s and Wendy’s didn’t respond to requests for comment. Regarding the lawsuit about Subway’s tuna sandwiches, a spokesperson said that the company uses 100 percent tuna and is confident it will win in court.

Although these fast-food lawsuits have generated plenty of buzz, some experts doubt they’ll make much of a difference unless businesses believe that news of the cases will cost them a lot of customers.

“If consumers send a message by refusing to purchase goods, then you might see change by the company,” Patten says.

In the meantime, experts advise consumers to pay more attention to how things are marketed and give careful thought to which brands they believe are worth the money.

“There are some structures out there to prevent people from hoodwinking us, and these lawsuits are part of that—but it’s a high threshold,” Bartholomew says. That’s why young people should think critically about the ads they see, he adds. “Trusting what an advertiser says is way different from trusting what a teacher or a family member says. You always have to consider the source.”

These fast-food lawsuits have sparked plenty of buzz. Some experts still doubt they’ll make much of a difference unless businesses believe that news of the cases will cost them a lot of customers.

“If consumers send a message by refusing to purchase goods, then you might see change by the company,” Patten says.

In the meantime, experts encourage consumers to pay more attention to how things are marketed. They also advise people to give careful thought
to which brands they believe are worth the money.

“There are some structures out there to prevent people from hoodwinking us, and these lawsuits are part of that—but it’s a high threshold,” Bartholomew says. That’s why young people should think critically about the ads they see, he adds. “Trusting what an advertiser says is way different from trusting what a teacher or a family member says. You always have to consider the source.”