The United States District Court for the District of New Jersey dismissed a putative class action which was based on Defendants' alleged failure to include the purchase prices for soft drinks and beers in their menus. While the court found that a restaurant menu may fall within New Jersey's Truth in Consumer Contract Warranty and Notice Act's definition of a consumer "offer," "notice" or "sign," the statute was not intended to cover omissions in consumer "offers," "notices" or "signs," such as the failure to include the purchase prices in a restaurant menu.
Plaintiff filed a putative class action against Defendants' DinEquity, Inc., Applebee's International, and International House of Pancakes, LLC alleging violations of New Jersey's Truth in Consumer Contract Warranty and Notice Act ("TCCWNA") for Defendants' alleged failure to include the purchase prices for soft drinks and beers on their menus. Defendants moved to dismiss Plaintiff's Complaint for her failure to state a valid claim for relief pursuant to Fed. R. Civ. P. 12(b)(6). In examining Defendants' Motion to Dismiss, the Court identified the critical issues as (1) whether a restaurant menu constitutes an "offer" or "written consumer contract, warranty, notice or sign" under TCCWNA, and (2) whether the omission of prices from a menu falls within the statute's language of prohibiting the inclusion of any provision that violates a consumer's clearly established legal rights.
The Court began its analysis by finding that a restaurant menu suffices as an "offer" by the restaurant under TCCWNA because it provides the consumer with listed food or beverage for sale. The Court further found that a restaurant menu would also fall within TCCWNA's definition of a consumer "notice" or "sign." Specifically, the Court noted that a "notice" is commonly defined as a "written or printed announcement," while a "sign" is commonly referred to as a "display…used to identify or advertise a place of business or product." The Court found that a restaurant menu fits within TCCWNA's definitions of a "notice" or "sign" because it is a written document that announces menu items and identifies specific food and beverages for sale. The Court held that the broad reading of these terms is consistent with New Jersey's liberal interpretation of its consumer protection statutes.
Despite its finding that a restaurant menu may be subject to TCCWNA, the Court went on to hold that the omission of prices from a menu does not fall within the statute's language prohibiting the inclusion of a provision(s) that violates a consumer's legal rights. It held that a plain reading of the statute's phrase "which includes any provision" violating a consumer's legal rights "can lead only to the conclusion that the New Jersey's legislature intended [TCCWNA] to cover inclusion" and not omissions. The Court recognized that New Jersey case law interpreting the scope of TCCWNA found that it was intended to prevent the inclusion of illegal provisions, but does not address omissions. Accordingly, the Court granted Defendants' Motion to Dismiss Plaintiff's Complaint for failure to state a claim.