Can You Really Sue Over Burger Sizes? 

Ever experienced your food portions being much smaller than expected? I’m sure you have: whether it was at an overpriced, Instagrammable cafe or perhaps, a fast food chain. As corporate chains and rising restaurants use appealing and sometimes exaggerated advertisements to lure us towards their shops, we the consumers end up disappointed and hungry after the meal. The real question is: can you really sue over the portion sizes? 

This 2023 case says maybe not. In 2022, a lawsuit was filed against McDonald’s and Wendy’s by the plaintiff – Justin Chimienti of New York – for misadvertising and misrepresenting products. Chimienti claimed that the burgers he bought at McDonald’s and Wendy’s locations were “much smaller than advertised”, stating that he was financially damaged because of it. In his complaint, the plaintiff accused the corporate giants of using undercooked burger patties in their advertisements, citing that meat shrinks by 25% when cooked and thus looks less delicious. Additionally, Mr Chimienti alleged that Wendy’s overstates the amount of toppings for their menu items. The plaintiff’s argument suggests that the chains’ advertising was misrepresentation, misleading customers who received food allegedly lower in value than promised. Thus, Chimienti’s lawsuit sought monetary damages that were unspecified to compensate himself and all individuals “deceived by the defendants as a result of purchasing an overstated menu item.” 

However, the lawsuit was dismissed. Judge Hector Gonzalez (of the U.S District Court for the Eastern District of New York) decided that the fast-food giants did not deliver burgers smaller than advertised. His 19-page ruling decision wrote that the appetising marketing by Wendy’s and McDonald’s were “no different than other companies’ use of visually appealing images to foster positive associations with their products.” Moreover, prominent disclaimers and objective information about the meals were displayed on the chains’ websites. 

Recently, food litigation lawsuits are increasing in numbers, going against large fast-food chains for misleading marketing and advertising of their products. Aside from the above case, the years saw lawsuits against companies like Burger King and Taco Bell with some being tossed and some pending. Now, how do these lawsuits apply to you? Can you sue for smaller portion sizes in Malaysia? How are you, as a consumer, protected from deception in food? 

Malaysia’s Consumer Protection Act 1999 is the foundation of consumer rights and protections in the country. Certain products have advertisement restrictions, such as medicines and drugs whose labels must be registered with the Ministry of Health under the Control of Drugs and Cosmetics Regulations 1984. Disregarding that, online advertisements of products (like your food or clothes) have to follow the Malaysian Communications & Multimedia Content Code. The regulations stated in part 3 of the code follows: 

(iii) Honesty and Truthfulness

1. Advertisements must not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge.
2. No advertisement should mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise.

It states that no advertisements should be misleading, whether it is due to being false, vague, or other reasons. Thus, advertisements like this can be reported to the Malaysian Communications and Multimedia Commission (MCMC) for breach of the Code. The advertiser will then be penalised. 

Furthermore, as part of your consumer rights, you are entitled to goods of a reasonable quality regardless of the marketing tactics. 

Section 32: Implied guarantee as to acceptable quality

1. Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality.  
2. For the purposes of subsection (1), goods shall be deemed to be of acceptable quality. 
   1. If they are
      1. fit for all the purposes for which goods of the type in question are commonly supplied;
      2. acceptable in appearance and finish;
      3. free from minor defects;
      4. safe; and
      5. durable

Hence, even with exaggerated ads and angles, your goods and services should attain a certain standard of quality. Unfortunately, this doesn’t mean that you can sue for misleading advertisements. In fact, most advertisements these days include a disclaimer in the fine print, stating that the images were for illustration purposes only. Hence, the extent of your consumer rights only go towards ensuring that advertisements adhere to certain guidelines. While suing is a far-fetched dream, you can still make complaints to ensure that action is taken. 

Next time you see another advertisement too good to be true, remember your consumer rights (and the tiny disclaimer written at the bottom) to avoid falling victim to deceptive marketing tactics. 

References

Diaz, Johnny. “False Advertising Suit against McDonald’s and Wendy’s Is Dismissed.” The New York Times, 4 Oct. 2023, www.nytimes.com/2023/10/04/business/wendys-mcdonalds-burgers-lawsuit.html. 

LAWS OF MALAYSIA ACT 599 CONSUMER PROTECTION ACT 1999 [REPRINT - 2001] https://mysafe.kpdn.gov.my/img/portal/consumer-safety/akta_perlindunganpengguna1999.pdf