False advertising suits are on the rise again. From boneless “wings” to skimpy tacos to wimpy burgers, consumers are fighting back against what they perceive as deceptive advertising practices.
Now Starbucks has been added to the roster of major food and beverage companies that are having to defend their practices in court.
Are these suits just sour grapes, or do they signal a sea change in how the public interacts with companies who sell the things they crave?
Bucking Against Starbucks
The Starbucks suit, filed in August of 2022, accuses the coffee giant of false advertising with their line of Starbucks Refreshers. According to the suit, the images the company used to promote the agua fresca-like beverages masked the real ingredients, which primarily consist of water, concentrated grape juice, sugar, and of course caffeine.
The judge overseeing the case denied a motion to dismiss from Starbucks, stating that consumers purchasing beverages with fruit in the names should have a reasonable expectation that the beverages in question actually contain the named fruits.
Starbucks, of course, is no stranger to controversy and contention in and out of the courtroom. Recently I wrote about Starbucks protesting the use of the word “siren” by a small coffee and apparel company in Alaska.
Likewise, the food and beverage industry at large has been roiled for the past several years by false advertising suits which asserted that consumers aren’t getting what they pay for.
Some of these suits range from absurd on the face, like the accusation that Chobani Greek Yogurt isn’t actually from Greece (Greek yogurt is a production style, like an English muffin, which does not require a specific geographical point of origin to be a valid designation) or that Red Bull doesn’t actually give you wings, to dubious, like the Buffalo Wild Wings kerfuffle over “boneless wings,” to the seemingly obvious, like the current action against Starbucks.
In the Starbucks class-action case, the plaintiffs assert that they ponied up for the premium-priced beverages, relying on the company’s advertising. Had they known what the drinks’ true ingredient roster was, they would either not have purchased them or demanded a lower price, a sentiment echoed in many similar suits.
The judge rejected Starbucks’ arguments for 9 of the 11 complaints leveled in the suit, stating that “nothing before the court indicates that ‘mango,’ ‘passionfruit,’ and ‘açaí’ are terms that typically are understood to represent a flavor without also representing that ingredient.”
What does the law say?
In the world of advertising, there is no such thing as creative license in the eyes of the law. While a brand can use catchy jingles, eye-catching commercials, and persuasive copywriting tricks and tactics, advertising and marketing ultimately must accurately reflect the product or service in question.
This is why you see lengthy lists of disclaimers including “precooked weight” for hamburgers, side effect information for medications, and language stating that the final product may not look exactly like the marketing materials in everything from fast food to smart phones.
This form of legal CYA has become commonplace as companies of all sizes, descriptions, and industries strive to protect themselves and their profit margins from lawsuits.
Of course, as I’ve remarked repeatedly, in the United States, anyone can sue anyone for anything they wish. It then falls to the courts to determine whether the suit has merit and should be heard, as well as to evaluate the evidence in the suit and decide the final outcome of the case.
Many of these eyebrow-raising suits stem from this basic tenet of American jurisprudence, and a frequent result is headlines calling out the ribaldry of either or both parties involved on the national and even global level.
But is there merit in these suits, or are these plaintiffs just inventing problems to score a payday off the corporate coffers of Big Business?
In some cases, of course, the answer to the merit question is yes, such as the infamous McDonald’s lawsuit over dangerously hot coffee. In other cases, the answer isn’t so clear.
It is commonly understood that food as advertised in the media or on a menu rarely looks exactly like the picture. Imagine going to a steakhouse, selecting a rib-eye, and then suing the steakhouse because the steak on your plate didn’t look precisely like the picture, down to the number of grill marks or the exact positioning of the fat marbling in the steak.
You would likely be laughed out of court, but the case would still have to be heard, and you’d be the main character and villain in every frivolous lawsuit discussion that came up for the next year (or decade plus, if you happened to be the sort of person who falsely claimed to have found a severed human finger in their fast-food chili).
The problem is that these cases are rarely so cut and dried. Like any other case, the court must evaluate the facts and evidence against the defendants and determine an appropriate remedy.
This takes up time on the court dockets which could be better used protecting the public interest and their Constitutional rights. It also injects a distinct note of irony because by protecting one person or group’s Constitutional right to a speedy trial and resolution in court, the risk is that another person or group’s Constitutional right to the same with potentially much higher stakes will be delayed.
The Bottom Line
On the surface, the Starbucks case seems fairly obvious and the judge’s reasoning holds up under close scrutiny.
If a consumer purchases something alleged to be or do one thing, only to find out it’s something else after the fact, that consumer is and should be entitled to the full protection of the law and redress for any damages they suffered as a result.
However, the reality is probably a good deal murkier, and the judge will be in the best position to see all the evidence for and against the plaintiffs’ assertions. (That’s why they’re the judge, after all.)
My bigger concern is for what suits like this presage for the future of marketing. The easiest way to avoid suits like this is to clearly state upfront what the consumer is getting, so they can make a decision based on informed consent to either purchase the product or service in question or choose something else that better aligns with their intentions and needs.
However, that’s unlikely to happen without a massive change in marketing laws which requires companies to do so. Until such a change comes about, I envision a future where suits like this no longer warrant even a raised eyebrow because they’re as common as rocks.
And in a justice system that relies on swift, fair action for all, that’s a future to be dreaded.
ABOUT JOHN RIZVI, ESQ.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.
Follow John Rizvi on Social Media
YouTube: https://www.youtube.com/c/thepatentprofessor
Facebook: https://business.facebook.com/patentprofessor/
Twitter: https://twitter.com/ThePatentProf
Instagram: https://www.instagram.com/thepatentprofessor/