EDNY judge doesn't have a beef with Wendy's and McDonald's ads

Chimienti v. Wendy’s Int’l, LLC, No. 22-CV-02880 (HG), 2023 WL 6385346 (E.D.N.Y. Sept. 30, 2023)

Plaintiff alleged New York statutory and common law claims based on allegations that Wendy’s and McDonald’s misleadingly advertised the quantity of food contained in various menu items sold at their restaurants by making the food look bigger in pictures with more toppings and thicker patties. The court dismissed the claims, mainly because the advertisements were not misleading as a matter of law.

Plaintiff alleged, for example, that in McDonald’s advertisements, “the beef patty extend[s] all the way to the edge of the bun,” but the patty “comes nowhere near the edge of the bun” when a hamburger is actually served. Defendants allegedly use uncooked, or partially seared, burger patties for their ads because “fully cooked burgers tend to shrink and look less appetizing.”

First, the plaintiff failed to allege the necessary injury because he didn’t allege that he saw the specific ads he identified as misleading. Even if he had seen them, they were mostly puffery:

Defendants’ act of advertising their products in a manner that makes them visually appealing … makes no objective claims about Defendants’ products. Defendants’ 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 within the Second Circuit have held to be immaterial puffery as a matter of law.

Depiction of the size of products, however, relates to an objective fact and is therefore not puffery. Still, a reasonable customer would not have been misled, given that the allegation was that the ads used the identical amount of uncooked meat that a customer would receive cooked: “This concession that both the advertisements and the products served in stores contain the same amount of meat is fatal to Plaintiff’s claims.” (I’m not sure this makes sense. If I thought I was seeing the cooked version, then by hypothesis I expected even more meat, since the uncooked version would have been even bigger.) Also, “the entirety of the advertisement on each website page describes in objective terms how much total food customers would receive.” They had calorie information, and Wendy’s said theirs was made with a “quarter-pound*” of beef with the asterisk referring to “[a]pproximate weight before cooking.” Quoting “various social media personalities who complained about the size and quality of Defendants’ products” didn’t change this result. “[W]hile plaintiffs are not required to meet the heightened pleading requirements of Rule 9(b) for GBL claims, plaintiffs must do more than plausibly allege that a label might conceivably be misunderstood by some few consumers. Instead, [p]laintiffs must plausibly allege that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.”

Plaintiff didn’t make any toppings-specific arguments, and anyway, the ads don’t specify the quantity of the toppings, “so their depiction of toppings does not become misleading simply because Defendants’ actual products may contain less than Plaintiff’s ‘personally preferred amount’ of toppings.”

Also, ads can't support a breach of contract claim.