Lawsuit says fast food burgers should look like the promo pictures

New York — It is unusual that you get what you see in food advertisements. Put differently, tacos and burgers don't appear like they do in advertisements. A current wave of cases seeks to alter that.

Attorneys have begun filing class action lawsuits against fast food chains in recent years, claiming that the firms are misrepresenting food in their advertising.

Leading the campaign have been attorneys James Kelly and Anthony Russo, who have filed lawsuits against Taco Bell, Wendy's, McDonald's, Burger King, and Arby's. The lawsuits claim that these corporations utilize advertisements that are inconsistent with their real food.

The complaints provide photographs of food advertisements coupled with photos of their actual equivalents as proof. Burgers appear tall in the advertisements, piled high with cheese and meat, and crowned with golden, circular buns.

However, the pictures of burgers purchased from a real fast-food restaurant show them to be flat, with the cheese and meat hardly protruding from the soft, white buns. Tacos are the same. Taco Bell's advertisements feature thick and robust Crunchwraps. The images in the case are practically empty and flat. Suits are still pending.

According to Tommy Tobin, a lecturer at UCLA Law and attorney at Perkins Coie, "we saw a record number of food litigation lawsuits filed from 2020 to 2023, with hundreds of new suits every year," and "food litigation is a fast-growing area of law."

The efforts of a few attorneys, namely Russo and Kelly, have been a major factor in the surge, according to Bonnie Patten, executive director of Truth in Advertising, a charity that works to shield consumers from deceptive advertising.

She explained that their cases center on quantity, effectively saying that food in advertisements appears more plentiful than what consumers actually receive. Lawyers such as Spencer Sheehan concentrate on the description of food. A lawyer from New York named Sheehan has brought hundreds of class action lawsuits against companies that utilize deceptive language on their packaging, such as using the word "vanilla" on products that contain little or no real vanilla.

Large chains have also come under fire for the way they present food. A class action lawsuit was filed against Starbucks last year, alleging that the company is deceiving customers by marketing its "Refreshers" drinks with ingredients that aren't actually present. The Mango Dragonfruit and Mango Dragonfruit Lemonade Refreshers, for instance, "contain no mango," according to the lawsuit, and "all of the products are predominantly made with water, grape juice concentrate, and sugar." Among other reasons, Starbucks contended that the fruits listed suggest a flavor rather than an ingredient.

"We look forward to defending ourselves against these claims," a Starbucks spokeswoman said in a statement, adding that "the allegations in the complaint are inaccurate and without merit."

Attorneys must prove beyond a reasonable doubt that the advertisements would deceive a "reasonable consumer" in order for a court or jury to find in favor of the plaintiffs in cases involving misleading advertising, according to Tobin.

"A court asks whether a reasonable consumer would be misled by the product's marketing or labeling under this standard," he explained.

The distinction between deceptive advertising and legitimate advertising will have to be made by the courts, which may be more difficult than it seems.