To Justin Chimienti, the Bourbon Bacon Cheeseburger and Big Bacon Cheddar Cheeseburger he bought at a Wendy’s in New York and the cheeseburger and Big Mac he bought at McDonald’s all had something in common: They were a lot smaller than they appeared in the chains’ advertisements.
So Chimienti sued the two chains last year and, in the process, became part of a growing phenomenon affecting the fast-food sector: Lawsuits claiming that the stylized advertisements of burgers, tacos and other items are misleading consumers.
Those two chains, along with Burger King and Taco Bell, have been sued over the past year-plus by customers who argue that the product given is much smaller than the product they believe they’re purchasing.
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“Burger King’s advertisements for its burger and menu items are unfair and financially damaging consumers as they are receiving food that is much lower in value than what was promised,” attorneys for a group of customers in several states wrote in a complaint accusing that chain of misleading customers with its ads.
A decision in that case, in fact, gave many of these cases some real life. A federal judge in Florida allowed the lawsuit to proceed, denying a motion for dismissal.
This potentially placed a common, years-long practice of food photography up to greater scrutiny. At what point is a photo of a burger or a taco just a company trying to sell a product versus legitimate false advertising?
After all, setting up those products for a photo shoot will be fundamentally different than low-wage workers preparing the same product for customers in the drive-thru.
“It’s not gonna look the same because of the photography,” Rishan Hanners, a food stylist who has been in the industry for seven years, said in an interview. “I mean, it’s just the way it is.”
Distinct differences
Restaurant Business tasked each of its editors with ordering fast-food items and comparing them with their marketing promos. Generally speaking, we found the food to look better than we thought. But it never was as good as in the photos.
KFC came the closest in our test. The Spicy Chicken Sandwich had the best overall appearance of any sandwich we tried, with a relatively close proximity to the ad on the website. The sandwich was squashed somewhat after it was put in a foil bag and then into another bag, but the foil kept the sandwich hot.
“Overall, it exceeded my expectations, which were quite low,” Executive Editor Lisa Jennings said.
At a Burger King in Minneapolis, where the restaurant’s mission statement was posted behind the counter, visible to customers, the Whopper we ordered for dine-in was neatly wrapped on a tray next to fries and a beverage. The burger itself was well put together, with the patty slightly exceeding the size of the bun. It was one of the best experiences we’d had at the restaurant in years.
And yet that burger still could not match the size of its counterpart in the company’s ad, which showed a patty much larger than the bun, with every topping visible.
The lawsuit against Burger King argues that the chain’s burger looks 35% bigger in its advertising. It also suggests the company changed its advertising starting in 2017 to make the burgers look larger than they are in reality.
Wendy’s Loaded Nacho Cheeseburger “wasn’t really loaded with anything nacho,” Digital Editor Kimmy “Spoons” Kaczmarek said. “You don’t even see that much cheese on it.”
Also in our test lineup was the Honey Pepper Pimento Chicken Sandwich from Chick-fil-A, a limited-time offer featuring a chicken fillet with pimento cheese, honey and mild pickled jalapenos. The product traveled well but was a “little squashed.”
The sandwich in the ads appeared fluffier, with a fillet that looked like it better fit the bun than the one we received, and the cheese leaked out of the sandwich.
We ordered several Doritos Locos Tacos and a Black Bean Chalupa on a visit to Taco Bell. The food itself seemed hastily prepared with little thought to presentation. The tacos, specifically, seemed to overflow with lettuce and lacked meat—a stark comparison to the beef-filled taco in the ads.
McDonald’s Double Quarter Pounder with Cheese didn’t look nearly as good as it did in its promos, but it “tasted quite good,” Senior Technology Editor Joe Guszkowski said. But he also doesn’t mind food photography.
“I understand the ads are essentially gimmicks,” he said. “As long as the food tastes OK, I’m satisfied.”
Gimmicks or not?
Food photography has been around almost as long as photography itself. Photographers, artists and cookbook authors often worked to present food to look as good as possible, with photographers using glue in place of milk or soap bubbles instead of beer foam. Hair spray or varnish was sometimes used to make colors appear more vivid, according to Artsy.net.
Fast-food restaurants typically do not resort to such things; Hanners said the idea that photographers use fake food or fake ingredients is a big misconception.
“If people actually thought about it rationally, it would take so much more work and skill to actually create realistic looking food with fake products or fake ingredients than it does to actually use real food,” Hanners said.
But it’s also misleading to use anything but the right ingredients. Hanners said she only uses real food with the actual ingredients to be used in that item. “Otherwise, I mean, you would just be lying to people,” she said.
But at the same time, food photography is fundamentally different than the act of presenting food to consumers. As we found out, stuffing food into multiple packages and then transporting it somewhere else can lead to a product that looks squashed or smaller than it would otherwise appear.
It’s also worth noting that the product is put together by workers who are busy trying to serve customers as quickly as possible. Unlike at, say, high-end restaurants, these employees are focused on speed and efficiency, not presentation.
Food photography, on the other hand, is painstakingly prepared by staff trying to make that product look as appetizing as possible. They spare no detail, including lighting and ingredient placement, to make that product look just right.
“If you’re going through a drive-thru, and you’re getting a burger from the fast-food drive-thru, that person inside the store making that cheeseburger has got probably 30 seconds to a minute to assemble that cheeseburger, put it together,” Hanners said. “The expectations are not the same.”
At the same time, some of these advertisements are aggressive. The Burger King lawsuit, for instance, argues that the newer ads make the Whopper appear much bigger than it did in 2017. And it argues that the chain has the same problem for numerous products on its menu.
“Although the size of the Whopper and the beef patty increased materially in Burger King’s advertisements, the amount of beef or ingredients contained in the actual Whopper that customers receive did not increase,’ the lawsuit said.
Social media backlash
Lawsuits over marketing and ingredients are commonplace in the restaurant industry and will likely continue so long as we have attorneys and courts. Subway, for instance, has been sued because its footlong sandwiches were not actually a foot long. Starbucks has been sued for not filling its cups well enough.
The current wave of fast-food marketing lawsuits, however, are driven in part by three law firms: The Russo Firm out of Delray Beach, Fla., the Law Office of James C. Kelley, and Panzavecchia & Associates. At least two of those three firms filed each of the three fast-food actions.
The lawsuits also appear to be driven by social media posts and food reviewers who argue that the products consumers are getting look nothing like they do in the ads.
The Burger King lawsuit quotes YouTube food critic John Jurasek, who argued in a video last year that Burger King “dropped the ball” with its Big King sandwich, the chain’s effort at a Big Mac rival.
“It’s not the biggest sandwich,” he said. “The picture makes you think that this thing is, like, you know, two pounds or something, that it’s going to be this massive, massive sandwich. It’s not that big.”
The Wendy’s-McDonald’s lawsuit, meanwhile, quotes several social media posts and food reviewers complaining about the size of products, such as one arguing that Wendy’s Big Bacon Classic is “an overpriced” Junior Bacon Cheeseburger. Another Twitter user wondered “Where’s the Beef” on the chain’s Bourbon Bacon Cheeseburger.
That lawsuit also quotes a YouTuber showing how much the patties in the chain’s cheeseburgers shrink after cooking, arguing that the ads do not fully convey that.
Taco Bell, meanwhile, has been called out by customers on Reddit over the apparent shrinking of its Crunchwraps.
Multiple lawsuits also take food styling to task. The Wendy’s-McDonald’s lawsuit cites stylist Ellie Stern, who said in a 2018 MoneyTalks interview that she “prefers to use burgers that are undercooked in photos” to ensure “a big, plump patty,” where cooked burgers are smaller and less appetizing.
“If you’re getting your photo taken, you want to look your best,” she said in that same video.
For her part, Hanners said consumers should not expect the items they get at fast-food restaurants to look exactly like the ads. She doesn’t believe the practice is misleading because they’re using the same ingredients, cooked in the same way, using tricks to ensure the product looks its best.
“It’s our job as a food stylist to present food in its most appealing way,” she said. “So, even though I’m using the same ingredients like, for instance, a fast-food cheeseburger—even though I’m using the same ingredients the restaurant offers to do my food styling, I have an ample amount of time to prepare that burger, put it together, placing ingredients, just set it up on a photo set.”
The ruling in the Burger King lawsuit will likely keep this debate going for a time, at least. Attorneys for Wendy’s and McDonald’s are already debating with lawyers for Chimienti whether the former case should have any bearing on that action. So it might be worth taking a little extra time to put those tacos together.