What are advertisers' obligations when showing pictures of their products in advertising? Are they required to depict their products accurately or is some creative license permitted? Putting it another way, when you show a picture of a product in advertising, is it it communicating specific claims about the product? Not necessarily -- at least according to a decision in federal court in New York.

There have been a number of lawsuits recently that allege that restaurants are misleading consumers by not accurately depicting in their advertising the food that they serve. For example, a plaintiff sued Wendy's, alleging that the burger chain's advertisements do not accurately depict what its burgers really look like. According to the plaintiff, Wendy's makes its burgers more appetizing than they really are and also overstates the thickness of the burgers and the amount of toppings that are included. In the case, the plaintiff points to the use of food stylists who, the plaintiff alleges, use uncooked, or partially seared, burger patties, since they look bigger and more appetizing than fully cooked patties.

The court dismissed the case against Wendy's. Here's why.

In order order to determine whether advertising is misleading under New York law, one of the key considerations is whether the advertising is "likely to mislead a reasonable consumer acting reasonably under the circumstances."

More appetizing?

The court first looked at the question of whether it communicates a false claim to make a burger appear to be more appetizing than it actually is. Here, the court held that the depictions of the burger were puffery, explaining that they were "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."

In other words, the court felt that showing a more appetizing version of a burger does not communicate an objective claim about the burger. The court wrote that Wendy's "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."

A bigger burger?

The court determined, however, that the depiction of the size of the burger did communicate an objective claim. Notwithstanding this, the court held that consumers would not have been been misled by advertising that shows a burger that is bigger than what consumers actually receive.

What the court focused on here was that the ads themselves don't actually use more meat in the advertising; they use an identical amount of uncooked meat. The court concluded, therefore, that "This concession that both the advertisements and the products served in stores contain the same amount of meat is fatal to Plaintiff's claims."

The court also pointed to the fact that, on the Wendy's website, the company describes how much total food customers will receive. The court explained, "Wendy's website pages advertising the Bourbon Bacon Cheeseburger and the Dave's Single hamburger both state the calorie content of each burger, and the first sentence of each advertisement states that each burger is made using 'A quarter-pound' of fresh beef." The court also notes that the website also explains that this is the "Approximate weight before cooking."

More toppings?

The court also wasn't impressed by the plaintiff's allegations that the advertising misrepresented the amount of toppings included in Wendy's burgers. The court explained, "Plaintiff's conclusory allegations that Defendants misleading depict the amount of toppings they serve, uncoupled from any description of the toppings he received, are not entitled to the presumption of truth and fail adequately to allege that Plaintiff was injured by Defendants' topping-related representations."

So, where's the beef?

The rules around product demonstrations are well-established. If you're going to include product demonstrations in your advertising, and those demonstrations are going to be understood to communicate specific, objective claims about the product, then you should be able to substantiate those claims. Similarly, if you're communicating to consumers that what they are seeing is real, then what they're seeing does, in fact, need to be real.

So, how do you do square those rules with the court's holding here? I don't think that this case should be interpreting as changing the rules on product demonstrations (or as decision that just ignores the relevant precedent). Instead, I'd suggest thinking about this decision as one that just asks the same questions that pretty much every false advertising case considers when it is looking at product demonstrations. Will consumers understand the commercial to be communicating specific claims about the product or will they simply interpret the images as communicating stylized, beauty shots of the product? Here, there's a strong argument to be made that the decision was an easy one. We've pretty much all had fast food burgers plenty of times in our lives -- and we all know exactly what they look like. No commercial that shows the most beautiful, idealized version of a burger is going to confuse consumers into thinking otherwise.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.