'Unfair and Deceptive': Wendy’s, McDonald’s Burgers Much Smaller Than Advertised, Class Action Alleges [DISMISSED]
by Erin Shaak
Last Updated on October 3, 2023
October 3, 2023 – Wendy’s, McDonald’s Burger Size Lawsuit Dismissed
The proposed class action detailed on this page was dismissed by a federal judge on September 30, 2023.
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United States District Judge Hector Gonzalez granted Wendy’s and McDonald’s move to toss the lawsuit in a 19-page memo and order. The judge found that the plaintiff failed to adequately allege that he was injured by Wendy’s and McDonald’s advertisements, in particular since the man did not allege that he ever saw them. Moreover, the judge ruled that even if the plaintiff had seen the specific ads cited in the complaint, he failed to show that a reasonable consumer “would likely be misled” by them.
Importantly, the judge noted that although the plaintiff, in a November 2022 memo opposing the restaurants’ motion to dismiss, withdrew his assertion that Wendy’s and McDonald’s present their products in a way that makes them “appear generally more appetizing than they turn out to be when served,” this act would nevertheless fall into a category of “puffery” given the advertisements make no objective claims about the products themselves.
“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,” the judge stated.
Though the judge conceded that Wendy’s and McDonald’s depictions of the size of their products are not in fact mere “puffery,” the plaintiff’s consumer protection claims fail nevertheless given that the consumer essentially admitted that the restaurants use “an identical amount of uncooked meat” in their advertisements as they use in their sandwiches.
“This concession that both the advertisements and the products served in stores contain the same amount of meat is fatal to Plaintiff’s claims,” Judge Gonzalez said.
The judge expanded that although the plaintiff’s lawsuit included cropped pictures of Wendy’s and McDonald’s products from their websites, each advertisement as a whole “describes in objective terms how much total food customers would receive,” namely by way of each product’s calorie content and the amount of beef used to make a sandwich.
“Plaintiff alleges neither that Defendants use more meat than stated in these advertisements to create pictures of the products used in the ads nor that Plaintiff received less meat than described in the ads,” Judge Gonzalez found. “And Plaintiff’s allegation that Defendants prepare the meat used in their advertisements in a manner that merely makes it appear larger than the meat he received fails to allege that the ads are misleading.”
Further, the judge shot down the plaintiff’s claim that Wendy’s and McDonald’s misleadingly depict the amount of toppings they serve with their products, namely because the consumer did not allege that he “failed altogether to receive any particular topping that was depicted in one of Defendants’ advertisements.”
In dismissing the suit, the court declined to grant the plaintiff leave to amend his initial complaint because, “even if Plaintiff could allege new facts indicating that he saw Defendants’ allegedly misleading advertisements, he cannot cure the other defects in his claims.” More importantly, the consumer, at this stage, “cannot take back his concession that Defendants use the same amount of meat in their advertisements as in the products they serve,” or that Wendy’s and McDonald’s ads include “no measurable representations” about the amount of toppings a consumer will receive.
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Wendy’s International, LLC and McDonald’s Corporation have been hit with a proposed class action this week that claims the fast-food giants have misleadingly advertised the size of the patties and toppings that come with their burgers.
According to the 35-page case out of New York, what customers actually receive when they order a Wendy’s Bourbon Bacon Cheeseburger or a McDonald’s Big Mac, for example, is a far cry from what is pictured in the advertisements for the sandwiches.
The plaintiff, a New York resident, alleges that the patties used in nearly every item on Wendy’s and McDonald’s menus are misrepresented in the restaurants’ advertisements as bigger—and with more toppings—than what customers actually receive when they order the food.
According to the case, this is because the patties that Wendy’s and McDonald’s use in their advertisements are not fully cooked. The case states that meat generally shrinks 25 percent when cooked, depending on its fat and liquid content. By searing only the outside of otherwise undercooking the beef patties used in advertisements, Wendy’s and McDonald’s can make their patties look 15 to 20 percent bigger than the fully cooked burgers actually served to customers, the lawsuit contends.
The complaint cites an interview with food stylist Ellie Stern—whose recent clients allegedly include both Wendy’s and McDonald’s—in which Stern admitted that she prefers to use undercooked burgers for advertisements because that “ensures a big, plump patty, whereas fully cooked burgers tend to shrink and look less appetizing.”
Wendy’s and McDonald’s burgers are not only less appetizing than consumers were led to expect—but are also worth less, according to the suit.
The plaintiff says the defendants’ advertisements for their burgers and other menu items are “unfair and financially damaging” in that the food customers receive is “much lower in value than what is being promised.”
Expectation vs. reality
The lawsuit claims Wendy’s and McDonald’s current advertisements “materially overstate[]” both the amount of toppings and the size and thickness of the patties used in their menu items, such that customers receive food that, as one reviewer put it, “[doesn’t] look like the picture.”
The complaint includes an image purporting to show a Wendy’s advertisement for a Dave’s Single burger next to the “actual burger served to customers”:
Similarly, though a McDonald’s advertisement for its cheeseburger shows a patty that extends all the way to the edge of the bun, the sandwich received by customers “has a materially smaller beef patty that comes nowhere near the edge of the bun and cannot even be seen in the … photograph,” the lawsuit states.
The complaint contains a handful of other pictures from food reviewers and customers that purport to show that the burgers Wendy’s and McDonald’s actually serve “don’t look anything like the marketing.”
According to the suit, the defendants’ misleading advertisements attract customers to their restaurants and cause them to “make purchases that they would not have otherwise made.”
This is “especially concerning,” the case says, in light of inflation and the fact that many consumers are “struggling financially” amid high food prices.
What menu items are mentioned in the lawsuit?
Though the case claims that Wendy’s and McDonald’s overstate the amount of toppings and size of their beef patties for “nearly every menu item,” the complaint specifically mentions the following burgers:
Wendy’s
- Big Bacon Cheddar Cheeseburger;
- Big Bacon Cheddar Cheeseburger Double;
- Big Bacon Cheddar Cheeseburger Triple;
- Bourbon Bacon Cheeseburger;
- Bourbon Bacon Cheeseburger Double;
- Bourbon Bacon Cheeseburger Triple;
- Dave’s Single;
- Dave’s Double;
- Dave’s Triple;
- Baconator;
- Son of Baconator;
- Big Bacon Classic;
- Big Bacon Classic Double;
- Big Bacon Classic Triple;
- Bacon Double Stack;
- Jr. Bacon Cheeseburger;
- Jr. Cheeseburger Deluxe;
- Jr. Cheeseburger; and
- Double Stack.
McDonald’s
- Big Mac;
- Quarter Pounder;
- McDouble;
- Cheeseburger;
- Double Cheeseburger; and
- Hamburger.
Who does the lawsuit look to cover?
The case looks to represent anyone in the U.S. who purchased one of the Wendy’s or McDonald’s items listed on this page between May 1, 2016 and the date the lawsuit is resolved.
How do I join the lawsuit?
There’s usually nothing you need to do to join or be considered part of a class action lawsuit when it’s first filed. If the case moves forward and settles, that’s when those affected, known as the class members, should receive notice of the settlement and instructions on how to file a claim for their share of the deal.
Keep in mind that it often takes months or even years for a lawsuit to be resolved. For now, one of the best things you can do is to stay informed.
We’ll post any notable updates on this page, but if you’d rather have class action lawsuit news come straight to your inbox, sign up for ClassAction.org’s free newsletter here.
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