Dr Ryan Cushley-Spendiff, Lecturer, NLS https://www.ntu.ac.uk/staff-profiles/law/ryan-cushley-spendiff
20 years ago, my parents took me up to Portrush for a day trip. On the way back, we stopped at a McDonald’s and I have a vivid memory of an immense argument breaking out at the counter. Overhearing the argument, it was based on the customer being outraged that their Big Mac did not look like the image on the ordering board behind the counter. My Mother’s reaction was a formative experience for this contract lawyer-to-be: She scoffed and sardonically said ‘Well what did he expect?’
‘What did he expect’ has now become a legal question, one that Burger King is holding its breath on.
In August 2023, Burger King found itself defending a claim that its advertisements for it’s flagship burger, ‘The Big Whopper’ were misleading, depicting a burger with ingredients that ‘overflow the bun.’ This class action lawsuit claims that the burgers are being made to look as if they are 35% larger than they are in real life. Rather than the claim being dismissed outright, District Judge Roy Altman found that the claim regarding images within the store must be heard, whereas the online and television depictions were to be dismissed. The reason for this divergence is that TV advertisements were not considered to be offers for sale due to the uncertainty surrounding the availability of items by the time the consumer enters the store, as opposed to ordering boards which have a select number of customers able to view them in close proximity. There is an explicit consumer-based rationale here, as DJ Altman explicitly states that it should be up to the ‘reasonable American consumers themselves’, when they sit in the jury box, to decide the question of if the images on the ordering board constituted a substantial difference between what was promised and what was sold.
Nor is this the first time Burger King has had problems with its advertised foods. In 2010, the UK’s Advertising Standards Authority (ASA) investigated complaints that the ‘Tendercrisp’ chicken burger was significantly smaller on TV adverts than in real life. They proceeded to purchase three burgers from a Burger King restaurant and reported that both the thickness and the height were ‘considerably less’ than in the advertised. As such, the advertisements were found to be misleading under section 3.3 of the The UK Code of Advertising (CAP) and were immediately pulled from service. More interestingly, however, is that Burger King is not the only fast-food restaurant that is finding itself in trouble over its depictions of its food. McDonald’s and Wendy’s are also facing similar lawsuits in New York, and in July, Taco Bell found itself and the receiving end of a legal writ over the weight of its products.
So why is it now that fast food operators are now contending with legal problems that, not too long ago, would have earnt derision from ordinary people considering the complainant to be naïve, entitled, or both?
When I first contributed to this blog in April 2023 it was on the allegedly deceptive practice of naming chicken breasts ‘boneless chicken wings.’ There, is discussed the concept of corporate cognitive capture, the ability of industries to shift public perception into their favour. While at the time the focus was on similar ‘misleading’ marketing, we had seen how companies have used it to justify or downplay really horrific events. From McDonald’s coffee-gate to a very recent incident of McDonalds cooking a chicken nugget in so much hot oil that it caused severe and permanent injuries to an 8 year old girl’s thigh. In the latter case, after the award of $800,000 to the injured girl, there was a strong campaign about the absurdity of having to tell people that ‘hot food is hot’ and McDonald’s attorney Jennifer Miller genuinely argued in defence that ‘she’s still going to McDonalds…getting chicken nuggets’. Seriously, that was their legal argument.
While Burger King has kept itself away from social media character assassinations, it has still played into the cognitive capture of absurd litigation, except they have done so within the context of the court setting. Burger King’s response to the allegation in court is rather telling:
“food in advertisements is and always has been styled to make it look as appetizing as possible. That is hardly news; reasonable consumers viewing food advertising know it innately. This lawsuit unreasonably pretends otherwise.”
It is undoubtably true that the market custom for the past few decades have been that food advertisements should always be taken with a large pinch of salt, sometimes literally. Food stylists are employed for the very purpose of displaying food with an unnatural appeal. This can go from mere airbrushing to more extreme methods such as microwaving tampons to generate food-like steam for the advert, placing cereal in glue as to ensure that it doesn’t get soggy from milk, and even spraying fruit with hairspray to give it that photogenic shine.
There is, however, nothing inherently unlawful about this practice that has been used for decades. This stylisation is explicitly allowed under legal rules, being referred to as ‘puffery’ under section 3.4 CAP. The line for unlawfulness is that it must be ‘materially misleading,’ a rather vague and flexible standard where only significant differences in marketing compared to service would be prohibited. This legal acceptance of puffery is a nod to the market custom that, in the process of marketing, there will be an expectation on both sides of the deal that the advertisement is stylised. Where informed consumers knew they could not fully trust an advertisement then, outside of outright fraud, airbrushing could hardly be called deceptive practice. The consumer, fundamentally, understood there would be a difference between marketing and reality.
Yet, the current may be changing on this. While market custom for advertisements was pro-business, consumer welfarism has been creeping in through continuous legal victories. It’s important to note that while Burger King maintained its tactic of arguing ‘this is an absurdity’ throughout their response to the case, they were not successful at dismissing the count for negligent misrepresentation, nor the count for breach of contract based on their ordering boards. Similar to the McDonald’s cases, the appeal to absurdity may win over public perception, but does little inside a court room. The inability for these arguments to take legal root yet means that consumers currently have more incentive to take such cases to court, even where historically they would have been socially derided for doing so.
Whether or not this case actually continues to a jury trial remains to be seen. The Fast-Food industry is notorious for settling disputes before they end up in court, forcing non-disclosure agreements as part of the settlement package, and then dominating the public perception. Even if this should end up in court, there is always the possibility that the jury will react the same way my mother did 20 years ago and immediately consider the claimant to be entitled and a litigation-chaser. Of course, they may decide the opposite, deciding to punish Burger King for continuously creating burgers that ‘appear to have been sat on’, to use a colourful phrase adopted by the BBC commentary on the case. Even so, this will just be used as ammunition by corporate lobby groups (most notoriously the American Tort Reform Association) as another horror story of ligation. Such horror stories eventually becoming examples to justify the rhetoric of an anti-business ‘Judicial Hellhole’ emerging in the state in order to encourage deregulation. No matter the outcome of this battle, it is unlikely that Burger King will lose the war.
While this does provide rather pessimistic outlook for ensuring corporate social responsibility via contract litigation, there are some positives. The uptick in litigation surrounding puffery could be an indication of a change in consumer mentality. While previously consumers were categorised as both uninformed and uninterested, the increase in cases shows that this is not an assumption that industry can safely rely on anymore. The fact that these cases are succeeding is also an indication that while cognitive capture has been generally successful, regulatory capture of basic principles of law has not been nearly as well received. Despite their attempts to translate rhetorical appeals to absurdity to legal language, courts have proven rather resilient. While Burger King’s slogan may be ‘Have it your way’, the legal system, at least for the moment, has no intention of letting Burger King have its own way.
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