A couple of years ago, we heard the tale of a lawsuit over consumer expectations. Forbes explains that Subway was sued because it marketed "footlong" sandwiches. A customer noticed that his sandwich was eleven inches and sued back in 2016. The company settled the lawsuit paying "about a half-million dollars--almost all of which goes to the plaintiffs' lawyers." The litigation was intriguing to many. Forbes explains that most sandwiches were in fact 12 inches.
Another critical point was that the volume of dough was identical from sandwich to sandwich, and a few baked up a bit short. They estimated usually no more than 1/4 inch short. Those that were shorter instead were wider or thicker. Regardless, the volume of ingredients within the bread was standardized and identical. So, footlong or not, the product delivered the same.
The court in which the Subway litigation proceeded concluded that there was no systemic and persistent "less than 12-inch" damage. Thus, the character of the "class" in this class action was challenging. How would someone know if they did qualify? Did you ever measure your sandwich? Do you have some proof of that beyond your recollection? Did you say anything?
Forbes concludes that there were "many holes in the plaintiff's case." Nonetheless, the lawyers got fees and the case went away. The article offers advice to advertisers. Care "with numerical promises to consumers" was on this list. Beware also that lawsuits on the basis of "false advertisement" may fail to demonstrate "fire behind that smoke."
I was reminded of that in late July when a court dismissed a claim against macaroni and cheese, as reported by Reuters. This was a "$5 million class action or force Kraft Heinz to change its packaging." The macaroni maker advertised, including on the package, that the product would be "ready in 3-1/2 minutes." The plaintiff complained that time did "not include time to remove the lid, add water and stir in a cheese sauce pouch."
Well, it did not include the time to get it off the shelf at the store either. The time commuting back home was likewise not included. The court did not notice that even with that "remove, add, and stir" time you might still eat it in 3-1/2 minutes. Who has not had a friend that preferred macaroni "al dente?" Some people like their grits that way. My Cousin Vinny, 20th Century, 1992. Who can forget "I'm a fast cook I guess."
Another point that was not seemingly raised is the variable of temperature tolerance. Do you eat something fresh from the microwave? Or, do you let it cool? I know people in each camp, and we are seemingly a bit unpredictable in that way. Is it "ready" when it is done cooking or does it become "ready" when it is appropriate to eat as according to my particular preferences? In other words, is "ready" an objective measure?
The macaroni litigation was dismissed for a couple of reasons. First is "standing." We are obsessed in the legal world with standing. We do not allow people to pursue litigation because they perceive someone else having a problem. The problem must affect us, the plaintiff, personally.
I explain this to my classes with a very insensitive joke about "shame" and "tragedy." Do you know the difference? Well, if your neighbor's house burns, that is a "shame." If my house burns, then that is a "tragedy." to have standing, you must demonstrate a "tragedy" in that sense - personal and actual injury.
The Miami court in this instance noted that the plaintiff "never alleged that she could not eat nor had even tried to cook the" macaroni. This is not a conclusion that the plaintiff did not. She may have bought the product, tried to cook it according to instructions, and failed to consume it. She may have done so many times daily for weeks on end. But, she did not allege that she had in the lawsuit.
Furthermore, the cooking process, as instructed, may have delivered a product "so flawed as to be rendered useless." But, in the end, we will never know because the attorney did not allege that. There must be tragedy (standing), and there must be personal damage, and the lawsuit must allege it, the proof must demonstrate it.
The court also noted that future injury is unlikely as the plaintiff now knows that the 3-1/2 minutes is only the microwave time. Knowing the truth may make the representations on the package less damaging? There is also the insinuation that the 3-1/2 minutes was not meant to be inclusive of the time you spend considering it, pulling it from the shelf, buying it, driving it home, moving it toward the microwave, reading the complex directions (remove lid, add water, add cheese pouch, stir), following the directions, and microwaving.
Maybe "microwave 3-1/2 minutes" really means that is how long you microwave it. Maybe, how long it takes to be ready comes down to a bit more time and may depend on whether you are the Mama bear, the baby bear or somewhere in between? What if you like yours molten and mushy? Perhaps your preference requires four minutes? What if my microwave is not as powerful as yours? What if, what if, what if?
I was reminded again of this story when
CNN ran a story in September about a "flurry of lawsuits." It turns out that food in restaurant advertisements looks fantastic, tantalizing, and downright pretty. We are drawn by it, enticed to it, and perhaps disappointed by what we receive when we purchase. Reportedly, suits have been filed against "Taco Bell, Wendy’s, McDonald’s, Burger King and Arby’s" on the basis of pretty food (pictures) that is not so pretty.
There is potential that class action lawsuits will prevail against some purveyors on the basis that sandwiches were actually bought (standing) and failed to live up to expectations (tragedy). But, does any advertising stand up? Do the plethora of beauty products actually make me beautiful? Does that shampoo actually make my hair fuller? Does that clothing brand really make my life better? Doubtful. Long ago the law adopted the caveat emptor stance. Thus, it is to the buyer to decide quality in the process of purchasing.
So, when the food is delivered, the consumer can choose. If it does not look like the picture (on the menu, the billboard, or the television) the customer need not consume it. Decline the proffer, and ask instead for your money. Go down the street to the next vendor and try your luck with their pictured fare. You see, a picture may be worth a thousand words, but many of those are the words of the observer. And advertisers have many tricks to
make the photos attractive.
Who has not checked into a hotel to find the rooms are not as large as they appeared in photos? Who has not ordered
something from the Internet and been disappointed? Hint, nothing on the Internet or on the earth will make me look like George Clooney. I know full well that when I order fast food it will look like fast food and not like the Madison Avenue, dream world, impression used to sell it. If that disappoints or angers you, buckle up. AI and deepfake are bound to make that situation worse instead of better.
I have heard through the grapevine that individuals do this. Some perceive a lack of candor in people's photographs on the Internet. My own associates have suggested it is time for a new profile picture on my social media. Alas, I perhaps do not look as good as I did in that photo twenty years ago, for which I paid hundreds of dollars to
Glamour Shots? When you pick me for a panel or presentation, should you be able to sue when the old, real world, me shows up instead of the airbrushed, deepfake profile pic?
You mean the world is not straightforward and easy? You mean that I have to look out for myself? You mean I have to spend 30 seconds putting water and powder in my 3.5-minute meal? Yes, yes, and yes. Look out for you. You will be surrounded by efforts to gain your trust, engage your hubris, and entice your consumption. They will be less than forthright and may be puffery. They may be exaggerated to gain your trust and money. That said, it is unlikely that consumers will gain compensation for their disappointment.
The fact is that most of us put our best face forward. We use a variety of efforts to look better than we actually do. The world of business uses puffery, exaggeration, and more to gain our business. But in the end, we decide whether the burger on the tray fulfills the expectation and deserves our dollar. If it doesn't, send it back. But please don't turn me down when I arrive for that panel. I am old and getting there is not as easy as it once was.
