Food ads have long made their subjects look bigger, juicier and crispier than they are in real life.
But some consumers say those mouthwatering ads can cross the line into deception, and that’s leading to a growing number of lawsuits.
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. While the case against Burger King was filed in Miami, where its parent company has its U.S. 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.
“Unfortunately, many businesses make these changes without consulting their marketing department or updating their menus to represent new portion sizes and ingredients,” he said. “This leaves them open to the kinds of lawsuits we’ve been seeing more of.” In late August, U.S. District Judge Roy Altman dismissed some of the plaintiffs’ claims. He ruled that the plaintiffs can’t argue that television or online ads constituted a “binding offer” from Burger King, because they don’t list a price or product information. But he said the plaintiffs could argue that the images on the menu boards represented a binding offer. He also didn’t dismiss claims of negligent misrepresentation.
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