Burgergate: TLDR, They’re Still Delicious! – Ep. 44 [Podcast]

Summary:

Burger King is facing a whopper of a lawsuit, with the fast-food chain’s critics claiming false advertising of some of its favorite lunch offerings. We’ll get into the juicy details on this week’s episode of Stuff you Should Know About IP!

Transcript: 

Raymond Guarnieri:

Burger King is facing a whopper of a lawsuit with the fast food chains critics claiming false advertising with some of its favorite lunch offerings. We’ll get into the juicy details on this week’s episode of Stuff You Should Know About IP.

Raymond Guarnieri:

Stuff You Should Know About IP is the only charcoal grilled podcast about intellectual property on the menu. So, if you’re having fun learning about IP today, please hit that Like button wherever you’re watching, or listening, leave a comment, subscribe and don’t forget to bring home an order of fries for your kids.

Raymond Guarnieri:

Today’s episode of Stuff You Should Know About IP is brought to you by the Trademark Lawyer Magazine. If you want to stay up to date with everything that’s going on in the world of IP and trademarks, go to www.trademarklawyermagazine. Each issue is free to read for up to eight weeks. That’s trademarklawyermagazine.com for global news in the world of trademarks. All right. I think I got the secret sauce out of my beard.

Thomas Colson:

Ray, I’m impressed that you got through that whole intro with a Whopper in your mouth.

Raymond Guarnieri:

That did not go as smoothly as I planned.

Thomas Colson:

No, no, but it went well.

Raymond Guarnieri:

[Crosstalk 00:01:28].

Thomas Colson:

I kept waiting for you to pause and take a drink or something.

Raymond Guarnieri:

This is probably the most unfavorable view. Where I took a bite, that looks a little bit more feeling somewhat like the pictures, but still not anywhere close.

Thomas Colson:

Okay. So, since you’ve done it, Ray, since you’ve done it, I’ll pull out the Impossible Burger that I bought.

Raymond Guarnieri:

Tomato out.

Thomas Colson:

Okay. So, let’s check out the Impossible Burger.

Raymond Guarnieri:

I want to see the Impossible.

Thomas Colson:

Right out of the wrapper-

Raymond Guarnieri:

I’m going to take another bite of this.

Thomas Colson:

Okay. Right out of the wrapper is the Impossible Burger, okay?

Raymond Guarnieri:

Oh, that is impossibly unlike the advertisement.

Thomas Colson:

Yeah. Now, so I’m showing you every angle because I want them to get it in the light most favorable to Burger King. And by the way, as much as this looks nothing like the advertisement, let me just say it’s still good.

Raymond Guarnieri:

It’s still good.

Thomas Colson:

I mean, the Whopper is a fantastic sandwich, but it doesn’t look anything like the ad. So, basically what’s happening is there is a lawsuit. A few you plaintiffs got together, there’s suing Burger King for false advertising essentially because of what everybody pretty much already knows and that is the thing on the picture doesn’t look anything like the thing you actually buy and are eating, so they’re suing. That’s really where we are-

Raymond Guarnieri:

I didn’t know you could do that.

Thomas Colson:

Yeah. I know. Shit, I wish I could have brought an action decades ago. So, the action is taking place, coincidentally, our firm is litigating a case right now for patent infringement in the Southern district of Florida and this case is taking place in the Southern district of Florida. So, maybe I will see these plaintiffs and defendants during one of my hearings down at the Southern district in Fort Lauderdale.

Thomas Colson:

So, anyway, a bunch of plaintiffs are suing Burger King and without getting into the gory details of the complaint, although I’m sure you’re going to want to show a few pictures, edit some in, but without getting into all the gory details, they’re essentially saying that the burgers are approximately 35% larger in the advertisement than in real life and they can contain more than double the meat. Now, why is this a problem? Well, let me just read the language from the complaint, let me just scroll down to it. Bear with me one moment. So, what they’re saying is… Here are four or five paragraphs from the complaint. “Burger King’s advertisements for its burger and menu items are unfair and financially damage consumers as they are receiving food that is much lower in value than what was promised. Burger King actions are especially concerning now that inflation, food and meat prices are very high and many consumers, especially lower income consumers, are struggling financially. Burger King’s promise to consumers of large portion of food with their purchase are also causing consumers to come, or order from, Burger King and make purchases they would not have otherwise made.

Thomas Colson:

And, they are unfairly competing with burger chains that more fairly advertise the size of their burger and menu items, so the are promises of large portions of food to steer consumers to Burger King for their meals and away from competitors, they are unfairly diverting millions of dollars in sales that would’ve gone to competitors.” And then they’d go on and give all these examples but one was a comparison between burger king and Wendy. So, essentially they’re saying it’s unfair to consumers and it’s unfair to competitors in this particular lawsuit. Wait, by the way, the final thing I’ll mention, which I find kind of funny, is that they then list in the complaint each of the allegations of the individual plaintiffs.

Thomas Colson:

So, there this guy in Florida named Walter Coleman, and he’s one member of this class action, and at the end, it says, “If Mr. Coleman knew that said burgers were much smaller than advertised, he would not have purchased the burgers.” Then there’s somebody named Marco D Leonardo in New York state. “If Mr. Leonardo knew that the burgers were smaller than advertised, he would not have bought the burgers.” Then a Mr. Matthew Fox says the same thing and then a Madeline Salzman from New York says the same thing. And, what I just find kind of funny is, seriously? You didn’t know when you bought this that it wasn’t like what’s in the picture. Really?

Raymond Guarnieri:

Look, I’m going to admit something live here to our millions of fans.

Thomas Colson:

Okay.

Raymond Guarnieri:

I have had Burger King before, before today. I know I don’t look like the type to go to fast food restaurants.

Thomas Colson:

Hey. I thought you were only eating celery and carrots.

Raymond Guarnieri:

But I have been to Burger King before and I think many people have been to Burger King before and I think most people know that the burgers don’t look like the ones in the pictures. I mean, this is just common sense, it’s common knowledge, people know the burger you get is not the burger in the picture and people keep going back.

Thomas Colson:

Yeah, because it tastes good.

Raymond Guarnieri:

Tastes good. And also, here’s the other thing that kills me about the portions of food and how it’s impacting people financially who are going expecting larger portions of food. Have you ever ordered a Whopper and fries and afterward felt like you didn’t get enough food? I finished a Whopper and fries and it’s hard for me to get out of my chair-

Thomas Colson:

This is a Coke.

Raymond Guarnieri:

I’m so full. And so, I just-

Thomas Colson:

When I was a kid, the Coke was up to the brown line. This-

Raymond Guarnieri:

And the rest was ice?

Thomas Colson:

This is bigger… It’s as big as my head.

Raymond Guarnieri:

Oh, yeah, yeah, yeah.

Thomas Colson:

The portions are huge. Now, having said that, it’s not appropriate, I don’t think, to advertise these fantastic looking burgers when you end up with this, okay? I mean, if you could, when you edit this, put a side by side with this-

Raymond Guarnieri:

Here’s a photo. This is from the complaint.

Thomas Colson:

Okay. Yeah. So, look at-

Raymond Guarnieri:

So, you can see the… Am I sharing the right screen here?

Thomas Colson:

Yeah. That’s the actual Whopper and by the way, that-

Raymond Guarnieri:

This is it.

Thomas Colson:

The picture in the complaint looks nicer than the one that I bought.

Raymond Guarnieri:

Oh yeah.

Thomas Colson:

No, no. I’m not talking about-

Raymond Guarnieri:

Okay, this Whopper.

Thomas Colson:

The ad, I’m talking about actual Whopper, the bad one in the complaint.

Raymond Guarnieri:

Yeah. This looks better than both of them.

Thomas Colson:

Than this. Okay.

Raymond Guarnieri:

This is not-

Thomas Colson:

By the way, check this out. Check this out, okay? Go back to the complaint and look at the bad one, the one that’s not the actual one.

Raymond Guarnieri:

Okay. So there’s Tom’s again…

Thomas Colson:

This is what mine looks like, and you saw me unwrap it. So look at this, come on. I would gladly take the actual Whopper from the complaint and it’s better than the one I just bought. And, Ray, can you put up the picture that I took?

Raymond Guarnieri:

Yeah.

Thomas Colson:

So, while I was in line half hour ago, I took a picture of the actual screen so that you could see the comparison of the actual Impossible Whopper versus this. And, I’m trying to give it the best view possible, and let me say, I can’t emphasize this enough, I love the Whopper. So, I still will eat these Whoppers and I still think it’s worth it because it’s a great sandwich. But come on, dude. Give us something that’s a little closer to what it actually looks like. Hey, so, it got me thinking, as I’m watching this about that one Star Trek episode. So, I don’t know if you want to play that clip or-

Raymond Guarnieri:

Oh, I do. Let’s just watch the clip and then we can talk about it.

Thomas Colson:

Okay. You got it.

Raymond Guarnieri:

All right.

Speaker 3:

I’m appearing before you as a neutral representative of the Fibonan Republic. To bring you a message of goodwill, present to you as team members of Teenaxi Delegation, a gift from the Fibonan High Council with the highest regard.

Speaker 4:

What’s wrong with it?

Speaker 3:

Excuse me?

Speaker 4:

Why don’t that want it anymore?

Speaker 3:

Well, this was once a piece of an ancient weapon and now they offer it as a symbol of, of peace. In the Fibonan culture, to surrender a weapon is an offer of truth.

Speaker 4:

How did they come by it?

Speaker 3:

They told me they acquired it a long time ago.

Speaker 4:

So, they stole it, then?

Speaker 3:

No, they. Well…

Speaker 4:

You don’t know the Fibonans like we do.

Speaker 3:

Yeah, that’s, that’s very true. Your Excellency, this gift-

Speaker 4:

They’re a crowd of untrustworthy thieves who want to see us murdered in our own beds.

Speaker 3:

This beloved artifact is a symbol of trust and peace.

Speaker 4:

They want to chop us into pieces and roast us over a fire.

Speaker 3:

I don’t think that’s true.

Speaker 4:

And eat us.

Speaker 3:

What?

Thomas Colson:

There it is. So, when I saw the ads, I thought of this clip. Because-

Raymond Guarnieri:

When you sent this to me, the first like minute I’m thinking, Okay, what is Tom trying to say here? I’m expecting a burger to fly out from one of those portals on the side. And then, when you see how tiny, the little, whatever that thing is, is I’m like, Oh, okay, I get where he is going with this.

Thomas Colson:

Yeah. So this, by the way, is not unique to Burger King. A few years ago, I think back in 2013, somebody posted something on social media about the Subway foot long sandwich.

Raymond Guarnieri:

Uh-huh (affirmative).

Thomas Colson:

And he measured it and it was only 11 inches. So, a class action was brought against Subway for that inch, because there were only 11 inches instead of 12 and, ultimately, it was kind of an interesting result. Somehow it got to the appellate division, the judge tossed the case and basically said that the lawyers were scam artists. Because, at the end of it all, the settlement that they came to, there was like 10 plaintiffs, they each got $500, the lawyers got $520,000. That was the-

Raymond Guarnieri:

What?

Thomas Colson:

Yeah, exactly. So, the judge went crazy, and I don’t mean she went crazy, she was just very angry. And she said, “This is a scam. This is just about the plaintiff’s lawyers getting some benefit and the people not getting anything” because they ended up with $500 each.

Raymond Guarnieri:

How does that happen?

Thomas Colson:

I tried to trace through it, but I was racing to Burger King to get the sandwich for the podcast and I didn’t want to get into an accident. So, these things happen because here’s the fact, they are advertised terribly. That Whopper looks nothing like the one that I just bought, right?

Raymond Guarnieri:

Right.

Thomas Colson:

And, maybe the Subway sub is an inch shorter. But, the question is, did it trick anybody? Is anybody duped by this? And, I don’t know, that’s a good question. And then, us thinking, remember we did those videos on false advertising versus puffery?

Raymond Guarnieri:

Yeah.

Thomas Colson:

It’s clearly not puffery because we’re actually showing a side by side comparison, so it’s not you saying “We have the world’s greatest burgers,” That would be puffery.

Raymond Guarnieri:

Right.

Thomas Colson:

But if we say, here’s what they look like, and they don’t, that is false and they probably do need to get slapped around a little bit. The question is, is anybody really tricked by it? And that’s why I thought those complaints, Mr. Delenardio or D Leonardo and Mr. Fox they’re like, “I wouldn’t have bought it had I known that it was going to be, bam this.” And not the thing-

Raymond Guarnieri:

I just don’t buy it, I don’t buy it, but I see your point. I think I just don’t care, I don’t care. I. If they want to make it look… To me, the beauty of that advertisement and the way that burger looks, that’s how it tastes to me.

Thomas Colson:

Interesting.

Raymond Guarnieri:

So, what I see is a representation of the taste, not of the actual burger itself.

Thomas Colson:

Interesting. I like that. You could be the defense lawyer.

Raymond Guarnieri:

[Crosstalk 00:14:59]

Thomas Colson:

Ray, you could be the defense lawyer.

Raymond Guarnieri:

Hey-

Thomas Colson:

You’re saying, Hey, this is how we make you feel.

Raymond Guarnieri:

Right, right.

Thomas Colson:

Right. And, oh, by the way, it does make me feel that way.

Raymond Guarnieri:

Right, until like 30 minutes after you eat it.

Thomas Colson:

Oh yeah, then you feel terrible. But-

Raymond Guarnieri:

And then you’re crashing.

Thomas Colson:

When I went out to buy this for our podcast, I’m sure you know, I also bought one to eat on my way back.

Raymond Guarnieri:

Right.

Thomas Colson:

And the way I felt, the way my brain chemistry was feeling, is the way that picture looked and it felt like it was this big, robust burger with meat coming off the side and tomatoes stacked up and lettuce-

Raymond Guarnieri:

Sort of like, if you close your eyes as you take a bite.

Thomas Colson:

Yes.

Raymond Guarnieri:

Then it looks like, but only if your eyes are closed.

Thomas Colson:

Yes. So, there’s another interesting thing from the complaint that’s probably worth mentioning and that is, a few years ago, let me just see if I could find it here, the UK got ticked off about this and they did something. Wait a second, let’s see, it’s almost there, almost there, let me see, good thing you can highlight in Adobe. Oh, yeah, approximately 12 years ago, Burger King was ordered to stop advertising overstated burgers by the Advertising Standards Authority, the United Kingdom’s regulator of advertising.

Thomas Colson:

So, this has been going on, of course, for some time. It’s not a new thing here and oh, by the way, if you want to hear how long these types of actions were going on, I found another one, let me see, let me see, I found one from 1980. Let’s see if I could get it here, 1980, where they were sued… Oh, dang it, of course, it’s up on my highlight screen here someplace. Hold on, hold on, that’s 2022, that’s not it, let me see. Okay, one more place here, just bear with me, I’m almost there, oh, there it is, I got it.

Thomas Colson:

Okay. So, 1982, there was an action. Wendy’s sues burger King over ad campaign. Okay. And basically they said, “We cannot allow the American consumer to be confused, confounded and misled by Burger King’s campaign. Our research completely contradicts everything they claim.” And basically, what they were saying is that the nation’s largest… Okay, they said that their ad say “that consumers prefer its broiled burgers to the fried patties of its competitors.” That was what they said in 1982, that they like broiled burgers more than their competitors and their competitors, including Wendy’s and McDonald’s, were like, Oh, we are not going to put up with this. We’re going to stop this. And they said, it’s kind of cool because remember this is 1982, they wanted an injunction because they said, “If the ads continue on TV…” Remember a thing called TV, Ray? You might be too young for that.

Raymond Guarnieri:

Yeah, it was those big boxes and they had the tubes inside.

Thomas Colson:

It was pre-Netflix. There was a thing called TV.

Raymond Guarnieri:

Yeah. My grandpa called it the boob tube.

Thomas Colson:

Yeah, exactly, and there were commercials on this thing. So on TV, they said, “If the ads continue, an estimated 90% of all American consumers will have seen the ads within eight weeks.” That was the power of TV at one time. So, the thing is these, these false advertising campaigns have been going on for, or I mean lawsuits, have been going on for a long time. And this one, though, I think will hit home the most with people because if you claim that people like charbroiled more than fried, no one cares, no one even gets it. But, if you show them an ad for a Whopper, then you show them this, people get it, it’s just so obvious and visible. There was that movie with Michael Douglas in 1993, don’t show the clip, because it’s a little stressful, where Michael Douglas

Raymond Guarnieri:

Falling Down.

Thomas Colson:

Yeah, he’s falling downward. He finally “I’ve had enough. I’ve been harassed now in my life and I can’t take it.” He goes into a burger joint and I think it’s called the Whammy burger or something, and he looks at it, like we’re doing now. and he goes, “Wait. This is nothing to do with what’s on that screen.” and then he pulls out a gun and all hell breaks loose. But, it’s kind of like what frustrated people get to. It’s, “This is what I’m getting? Really?”

Raymond Guarnieri:

Yeah.

Thomas Colson:

And it’s kind of hard for people to get to the Ray point of view, which is, well, it’s not what it actually looks like, it’s how you feel when you eat it. That might take a little bit of weed, maybe a little cannabis mixed into it to get people there.

Raymond Guarnieri:

The thing that’s so much worse about it today is that it’s not cheap to go to Burger King anymore, or McDonald’s.

Thomas Colson:

Right.

Raymond Guarnieri:

If you go with just one other person, you’re going to spend, if you get two meals, you’re over $20.

Thomas Colson:

Oh, absolutely.

Raymond Guarnieri:

$25 even.

Thomas Colson:

I spent $17 to get a value meal, which was a Whopper, fries, Coke, large.

Raymond Guarnieri:

Yeah.

Thomas Colson:

And the Impossible Burger just for this podcast, I spent $17.

Raymond Guarnieri:

Now, I will say that I don’t expect the burger to look like the picture, I said that already. But what is disappointing is the portion of fries that they give you. I remember you used to go and if you ordered a large fries, it was more fries than you could possibly eat.

Thomas Colson:

Right, right, yeah.

Raymond Guarnieri:

And that has significantly shrunk over the years.

Thomas Colson:

No question,

Raymond Guarnieri:

And, they have good fries, so I’m always like, Oh, I’m last fry and you savor it. Now, I’m still not-

Thomas Colson:

This was the large size.

Raymond Guarnieri:

Hungry at the end of it, but-

Thomas Colson:

This was the large size today. And when I got it wasn’t even, it wasn’t pouring out.

Raymond Guarnieri:

Like bursting from the top-

Thomas Colson:

Exactly.

Raymond Guarnieri:

Fries overflowing, it’s not like that, no.

Thomas Colson:

Now, you know who we could give a plug for that does well at that? Five Guys.

Raymond Guarnieri:

Five Guys.

Thomas Colson:

You go in there and order a fries, they fill the bag. They give you the whole bag.

Raymond Guarnieri:

Yeah, yeah.

Thomas Colson:

And there’s stuff pouring over. You can’t eat all the Fries that they give you.

Raymond Guarnieri:

Yeah. And then another local chain is Ted’s Hot Dogs.

Thomas Colson:

Oh, yeah.

Raymond Guarnieri:

They do it pretty well. They really give you big portions… Oh, I got lettuce on me.

Thomas Colson:

Oh, yeah. Listen, if you’re ever going to be in Buffalo, New York, you got to go to Ted’s. It’s one of our staples here.

Raymond Guarnieri:

Oh, it’s so good.

Thomas Colson:

Oh, yeah, yeah.

Raymond Guarnieri:

All right. Well, if you guys enjoyed listening to us talk about Burger King’s false advertising, well, the claims against Burger King-

Thomas Colson:

Claims, right, right.

Raymond Guarnieri:

False advertising, or if you’re just hungry, make sure to leave comment in the comment box at the bottom of this podcast-

Thomas Colson:

If you’re just hungry,

Raymond Guarnieri:

Just say “I’m hungry now,” that would be fine. And hit Like, make sure you subscribe to us wherever you listen and we’ll see you next time on another episode of Stuff You Should Know About Intellectual Property.