'Shrinkflation,' Class Actions and Misrepresentation

A proposed US class action has accused Burger King of false advertising stating pictures of its best-selling fast-food item make it look bigger than it actually is.  The claim references adverts that show ingredients that “overflow over the bun,” making it appear 35% larger and containing more than double the meat actually served.

A US judge last month rejected Burger King’s attempt to have the case thrown out of court, paving the way for the arguments to be heard in front of a jury.

Similar US law suits concern advertising of McDonald’s and Taco Bell. Plaintiffs argue that the false advertising is so blatant that it amounts to breach of contract.

UK

In the absence of punitive damages it is unlikely that class actions of the kind seen in the US will spread to the UK.  Although individual claims where products do not meet specifications ie B2B would be under commercial contract law; ordinarily the price on a consumer basis would make any individual contract claim on food products de minimis.

It is far more likely that misrepresentation of food products in advertising ie whether adverts or commercial documents ‘misrepresent’ their food product to consumers particularly as to their nature, substance or quality, would result in complaints to the UK Advertising Standards Authority (ASA.) Around 70% of the complaints received by the ASA are about misleading advertising.

All marketing and advertising must be an accurate description of the product or service.

• Marketing communications must not materially mislead or be likely to do so.
• Obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead.  Difficulty can arise, however, when a claim which a marketer intended as puffery is actually one which the ASA considers is likely to be understood as objective.
• Marketing communications must not mislead the consumer by omitting material information.
• Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims.
• Substantiation - Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. 

In some cases enforcement action by trading standards may be taken under the following legislation:

Food Safety Act 1990

• Section 15: “falsely or misleadingly described or presented” -
• any person who labels or advertises food in a way that falsely describes it, or labels, advertises or presents food in a way which misleads as to its nature, substance or quality, is guilty of an offence. The offence can occur when statements are untrue or pictures of food are presented in a misleading way. The offence also covers material that is correct but given such emphasis that the purchaser is led to the wrong impression.
• the Food Safety Act offence would apply to both consumers and other businesses.

Regulation (EC) 178/2002

Article 16: Presentation ‘the labelling, advertising and presentation of food including their shape, appearance or packaging or packaging materials used, the manner in which they are arranged and the setting in which they are displayed and the information which is made available about them through whatever medium shall not mislead consumers.

The Consumer Protection from Unfair Trading Regulations 2008 also creates offences for misleading actions or omissions and other unfair or aggressive commercial practices.

Summary – Whilst ads would wish to portray the food products in the best possible light they must not misrepresent the quantity or ingredients of those products without being considered misleading.