A federal judge in New York has dismissed a lawsuit against McDonald’s and Wendy’s over the size of their burgers, saying that the customer who had filed the lawsuit didn’t allege that they’d seen the advertisements in question.
U.S. District Court Judge Hector Gonzalez said Justin Chimienti did not offer enough proof he was injured by the burger chains’ ads and said that the advertisements themselves “did not constitute offers to enter into a contract.”
“Defendants’ effort 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,” Gonzalez wrote, noting that such associations are “immaterial puffery” so long as they do not make any representations of actual size.
The decision to dismiss the lawsuit came weeks after a federal judge in Florida allowed a similar lawsuit to proceed against Burger King over the size of the Whopper in advertisements and in reality.
Chimienti had filed a letter with the court in the New York case referencing the Florida lawsuit, arguing that the Florida decision set a precedent. The judge apparently was not swayed.
Chimienti sued the two chains last year, saying that he had ordered a Bourbon Bacon Cheeseburger and a Big Bacon Cheddar Cheeseburger at Wendy’s, and a Big Mac at McDonald’s, and found all the burgers to be much smaller than the chains’ advertisements.
The lawsuit argued that the ads used undercooked beef in their ads, while fully cooked beef can shrink in size by as much a 25%, which gave customers a misleading perception of the burgers’ size. The judge, however, said that was not enough to present a case that the chains actually misled consumers.
Chimienti “does not allege that defendants created a misleading impression about the size of their meals by using more meat in their advertisements than they serve in their stores,” Gonzalez wrote. “He instead alleges that defendants create this impression by using an identical amount of uncooked meat in their ads.” He called that concession “fatal” to Chimienti's claims.
Members help make our journalism possible. Become a Restaurant Business member today and unlock exclusive benefits, including unlimited access to all of our content. Sign up here.