In a recent Q&A with Harvard Law Today, Partner Louis Tompros discussed the recent class action false advertising lawsuit against Burger King, which alleges that the fast-food giant falsely represented the size of its meat-based products. Considering this suit, and similar cases against Arby’s, McDonald’s, Taco Bell and Wendy’s, Tompros further dives into how class action lawsuits work and the legal concept of ‘puffery’ in advertising.
Excerpt: “Puffery is intended to attract more consumers rather than to intentionally deceive them about a fact. And, generally speaking, puffery is fine. Whereas intentional deception about a fact is false advertising and is improper."
Companies take great effort to ensure their product looks it’s best, which is often reflected in their commercials when cereal companies use glue instead of milk or fast-food restaurants methodically place sesame seeds onto their buns. This is not false advertising, it’s a legal marketing tactic known as puffery. However, in the suit against Burger King, the plaintiffs don’t allege that the burger didn’t look like the styled photo, had they done so, the case would have been rejected. The complaint is more specific in that the photo allegedly advertised a fact about the size of the patty, and that fact was false, the patty was smaller than promised.