Reason Prevails for McDonald’s and Wendy’s in Burger Beef

On September 30, 2023, U.S. District Judge Hector Gonzalez dismissed a proposed class action accusing McDonald’s Corporation (McDonald’s) and Wendy’s International, LLC (Wendy’s) of exaggerating the size of their hamburgers in advertisements, ruling that reasonable customers wouldn’t be misled by the companies’ advertisements. The court also denied the plaintiff’s request for leave to amend the complaint. Although the decision did not invoke arcane legal principles, there are still useful takeaways in this ruling, which touched on the fundamental requirements of a deceptive advertising claim.

To begin, in May 2022, the plaintiff sued defendants McDonald’s and Wendy’s in the Eastern District of New York alleging that the restaurants sold multiple menu items based on false and misleading advertising concerning the size of the beef patty and/or the number of ingredients or toppings of the menu items. The crux of the suit was that McDonald’s and Wendy’s allegedly advertised menu items with pictures that look more appealing than how the menu items were actually served to customers.^[1]

In support of his allegations, the plaintiff singled out two Wendy’s sandwiches: the Dave’s Single hamburger and the Bourbon Bacon Cheeseburger, referring to two advertisements on the Wendy’s website and a YouTube video for the second burger.^[2] Similarly, the plaintiff cited a McDonald’s advertisement on its website for its standard cheeseburger that was allegedly more appealing than a cheeseburger typically sold at a McDonald’s restaurant.^[3] The plaintiff also claimed that because “meat shrinks 25% when cooked,” the images falsely portrayed the size of the burger patties of the sandwiches.^[4] The complaint purported to be corroborated by a food stylist who allegedly worked to prepare advertisements for Wendy’s and McDonald’s.^[5] She claimed that the defendants used partially cooked burger patties in their ads because they look more appetizing and shrink less than fully cooked burgers.^[6]

According to the complaint, Wendy’s and McDonald’s “advertise[d] larger portions of food to steer consumers to their restaurants for their meals and away from competitors that more fairly advertise the size of their burgers and number of their menu items, unfairly diverting millions of dollars in sales that would have gone to competitors.”^[7] As a result, the plaintiff claimed the alleged practice is unfair and financially damaging to consumers who might not have chosen to eat at McDonald’s or Wendy’s had they known the actual size of the burgers.^[8]

Among his reasons for dismissing the complaint, Judge Gonzalez reached two seemingly minor—but consequential—conclusions, which ultimately doomed the plaintiff’s claims. First, the plaintiff had “not adequately alleged that he was injured by defendants’ advertisements, since he does not allege that he ever saw them.” Second, “he failed to allege that the advertisements were materially misleading.”^[9]

You Have to See AND Believe It!

To start, the court rejected the plaintiff’s claims under Sections 349 and 350 of New York’s General Business Law (GBL)^[10] because the plaintiff failed to allege he ever saw the advertisements before ordering the burgers. It is well established in the Second Circuit that to successfully challenge a misleading ad, a plaintiff must claim that they saw it before making a purchase.^[11] The plaintiff’s complaint failed because he did not state that he saw any of the specific advertisements that he identified in the complaint, and his complaint makes no allegation about how the items he ordered were visually presented in the particular stores that he visited.^[12]

But Judge Gonzalez went even further, holding that the claim would fail even “if plaintiff had seen the advertisements cited” because the complaint “fails adequately to allege that a reasonable customer would likely be misled by them.”^[13] Although the plaintiff had withdrawn his claim that the companies misleadingly exaggerated the appeal of their sandwiches, the court was clear that such efforts to make their food more appetizing were “immaterial puffery.”^[14]

Judge Gonzalez held that merely “advertising their products in a manner that makes them visually appealing … makes no objective claims about Defendants’ products” and is thus unactionable.^[15] The restaurants’ “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.”^[16]

The Proof Is in the Patty

On the other hand, Judge Gonzalez observed that the plaintiff’s claim about the size of the products related “to an objective fact and is therefore not puffery.”^[17] Addressing the plaintiff’s claims that McDonald’s and Wendy’s created the impression of larger burgers by using the same amount of uncooked meat in their ads, Judge Gonzales held that the plaintiff’s “concession that both the advertisements and the products served in stores contain the same amount of meat is fatal to plaintiff’s claims.”^[18] Judge Gonzalez also observed that, while the plaintiff had included cropped pictures of the restaurants’ products in his complaint, “the entirety of those advertisements on the companies’ websites describe in objective terms how much total food customers would receive.”^[19] In reaching his decision, Judge Gonzalez followed multiple Second Circuit courts that have dismissed claims “where customers received the same objective amount of product that was advertised yet alleged that the defendants’ advertisements made it appear that customers would receive a larger portion.”^[20]

Fast Action in Fast Food Yielded Fast Results

This result is an important reminder of testing the sufficiency of a plaintiff’s allegations early in the litigation. Here, Wendy’s and McDonald’s avoided a potentially massive class—all individuals or entities in the United States that purchased an allegedly overstated Wendy’s or McDonald’s menu item—by challenging the plaintiff’s claims at an early juncture. This decision also adds to a growing body of Second Circuit jurisprudence dismissing claims of false and misleading advertising where a plaintiff was provided the exact amount of product advertised but alleges the defendant’s ads suggested they would receive more.

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^{[1] Memorandum and Order, Chimienti v. Wendy’s Int’l, LLC, No. 22-CV-02880 (HG), 2023 WL 6385346 (E.D.N.Y., Sept. 30, 2023) (“Order”).}

^{[2] Compl. ¶¶ 4–5, 14 (ECF No. 1 in Chimienti v. Wendy’s Int’l, LLC et al., No. 1:22-cv-02880 (HG) (E.D.N.Y.)).}

^{[3] Id. at ¶ 27.}

^{[4] Id. at ¶¶ 8–9, 35–36.}

^{[5] Id. at ¶¶ 11–12, 32–34.}

^{[6] Id.}

^{[7] Id. at ¶ 42.}

^{[8] Id. at ¶¶ 38–41.}

^{[9] Order at *3.}

^{[10] “Section 349 of the GBL provides a cause of action for any person injured by deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service,” and “Section 350 of the GBL prohibits false advertising in the conduct of any business, trade or commerce.” Id. (citation omitted).}

^{[11] Id. (citations omitted).}

^{[12] Compl.at  ¶¶ 44, 65, 68–69.}

^{[13] Order at *3 (citation omitted) (employing “an objective definition of misleading, under which the alleged act must be likely to mislead a reasonable consumer acting reasonably under the circumstances”).}

^{[14] Id. at *4.}

^{[15] Id. (citation omitted) (covering “subjective statements that cannot be proven true or false and are therefore non-actionable puffery as a matter of law,” such as “exaggerations or overstatements that mention nothing specific, but rather amount to general claims of superiority expressed in broad, vague, and commendatory language that are considered to be offered and understood as an expression of the seller’s opinion only”).}

^{[16] Id. (citation omitted).}

^{[17] Id. (citation omitted).}

^{[18] Id.}

^{[19] Id. at *5 (citing Compl. ¶¶ 4, 14, 27).}

^{[20] Id. (citing Wurtzburger v. Ky. Fried Chicken, No. 16-cv-8186, 2017 WL 6416296, at *3 (S.D.N.Y. Dec. 13, 2017)); Green v. SweetWorks Confections, LLC, No. 18-cv-902, 2019 WL 3958442, at *6 (S.D.N.Y. Aug. 21, 2019); Daniel v. Mondelez Int’l, Inc., 287 F. Supp. 3d 177, 193–94 (E.D.N.Y. 2018).}