This quote, taken from a recent CNN Business report, reflects a new trend in “food litigation.” Hundreds of lawsuits have been filed over the “depiction” of food by advertisers, including the major fast-food chains like Wendy’s, McDonald’s, Arby’s, Taco Bell, Burger King, and a slew of others. Even such chains as Starbucks are being hit with challenges to how they represent food or beverages either pictorially or in written descriptions.
In response to recent litigation, a Burger King representative stated: ““The plaintiffs’ claims are false . . . the flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of Whopper sandwiches we serve to guests nationwide.” And these defenses seem to be holding, at least in some of the litigation. Recently, McDonalds and Wendy’s have won litigation related to these types of claims.
Who is leading the charge on these? According to one article, it is the attorneys seeking to collect contingency fees in these “class action” lawsuits that is driving this trend, and they have to get a plaintiff on board to do so who can prove that, as a “reasonable consulter” they would be misled by the products marketing and labeling. The plaintiffs all receive a small amount of money, while the lawyers walk away with a generous payoff.
Food litigation in the U.S. has traditionally stayed away for m “perception” issues, focusing on more substantial injuries. According to national food safety attorney Tony Coveny, Ph.D., “these are definitely NOT the types of claims we bring to court in our food safety litigation. Our practice is in saving lives and preventing illness, not insuring that the colors or adjectives used to describe food or drink is adequately representative of the actual product. While I am sure there are some valid concerns here, at Ron Simon & Associates, our job for 20 years has been preventing food borne illness. Six million Americans still acquire food borne illness every year, and that is unacceptable.”
For now, however, as long as defendants are settling out of court, or winning at trial, there will be people (and their lawyers) willing to bring these lawsuits.
