A federal court in New York has thrown out a proposed class action claiming that McDonald’s and Wendy’s advertisements overstate the toppings and hamburger patty size compared to the products that customers receive. Chimienti v. Wendy’s International, LLC, No. 22-2880 (E.D.N.Y., filed September 30, 2023). The plaintiff brought claims under state consumer protection laws including New York’s General Business Law, as well as breach of contract and unjust enrichment. In his complaint, the plaintiff alleged that McDonald’s and Wendy’s publish advertising with pictures of their menu items that look more appealing than how the menu items turn out when served to customers.

The court held that the plaintiff’s New York claims cannot stand because he failed to allege that he saw the specific advertisements that he asserts were misleading. The court said that even if the plaintiff had seen the advertisements he cited in his complaint, he also failed to adequately allege that a reasonable customer would likely be misled by them. The court said that the defendants’ act of advertising their products in a visually appealing way falls under a form of non-actionable puffery.

The defendants’ depiction of the size of their products relate to an objective fact, however, and is not puffery, the court said. The court said the plaintiff’s claims still fail because he does not allege that the defendants created a misleading impression about the size of their meals by using more meat in their advertisements than what they serve in their stores, but rather alleges that the defendants create this impression by using an identical amount of uncooked meat in their ads. “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 held.

The court also rejected the plaintiff’s breach of contract claim, finding that the advertisements themselves did not constitute offers to enter into a contract with the plaintiff, and the unjust enrichment claim, ruling that the plaintiff failed to allege the defendants engaged in any unfair practices. The court denied the plaintiff’s request for leave to amend his complaint.