Advertising Law Blog

McDonald’s and Wendy’s defeat lawsuit over burger depictions

Recently, we blogged about a lawsuit that accused Arby’s of false advertising by serving roast beef and brisket sandwiches that contained significantly less meat than what was depicted in advertisements. Arby’s may be breathing a sigh of relief right now because McDonald’s and Wendy’s have just prevailed in a similar lawsuit that targeted the depictions of their burgers.

In Chimienti v. Wendy’s International, LLC, decided on September 30, 2023 in the federal district court for Eastern District of New York, a single lawsuit accused both McDonald’s and Wendy’s of misleading advertising practices. Plaintiff Justin Chimienti argued that the photos of hamburger items in commercials and on websites made the food appear larger than it actually was when served to customers. The plaintiff also claimed that these advertisements overstated the quantity of toppings and the thickness of hamburger patties. For example, the lawsuit pointed to advertisements for Wendy’s Dave’s Single hamburger and the Bourbon Bacon Cheeseburger, as well as McDonald’s standard cheeseburger as depicting menu items that looked significantly different than what customers actually received.

Furthermore, the plaintiff argued that both companies used uncooked meat in their ads to make the burgers seem larger. As support for the claim, the plaintiff cited an interview with a food stylist who had allegedly worked on advertisements for both McDonald’s and Wendy’s that indicated the use of uncooked or partially seared burger patties made them look more appetizing.

The plaintiff also quoted social media influencers and food reviewers who had complained about the disparity between the advertised and actual food. He claimed that misleading advertisements harmed customers because they were deceived into making purchases they wouldn't have otherwise made, thus causing financial damage. The lawsuit contained claims against McDonald’s and Wendy’s for violation of New York’s General Business Law, breach of contract, unjust enrichment and negligent misrepresentation.

Ultimately, the court dismissed all of the plaintiff’s claims, primarily because he failed to prove that the advertisements were materially misleading or that any injury had actually been sustained.  In so ruling, the court wrote, “the entirety of the advertisement on each website page describes in objective terms how much total food customers would receive. Website pages advertising the Bourbon Bacon Cheeseburger and the Dave’s Single hamburger both state the calorie content of each burger, and the first sentence of each advertisement states that each burger is made using ‘[a] quarter-pound* of fresh beef.’ Only a few lines below that sentence, each webpage reveals the asterisk to be a caveat that says ‘approximate weight before cooking.’”

Wendy’s and McDonald’s victory was largely based on their defense of puffery, which is considered a form of harmless exaggeration that is allowed to a limited degree in advertising. The defendants’ portrayal of their products in a more visually appealing manner fell into the category of puffery because the photographs made no objective claims about the products. Specifically, the court held that efforts to present appetizing images of their products are no different than other companies’ use of visually appealing images to foster positive associations with their products, which courts have held to be immaterial puffery as a matter of law. 

The court also rejected the notion that the advertisements constituted offers forming contracts when customers made purchases.

Significantly, the dismissal was with prejudice, meaning the plaintiff has no opportunity to recast his complaint. On this point, the court explained, “regardless of any amendment plaintiff might make, he cannot take back his concession that defendants use the same amount of meat in their advertisements as in the products they serve. Nor can he change the fact that defendants’ advertisements make no measurable representations about the amount of toppings customers will receive.”

TAKEAWAY: This case highlights the challenges consumers face when trying to hold companies accountable for allegedly misleading advertising. While deceptive advertising is a concern, it can be difficult to prove that a photograph misled a reasonable consumer acting reasonably under the circumstances.