Wendy's, McDonald's lawsuit claims burger ads mislead consumers on patty sizes

Attorney James C. Kelly told FOX Business, 'There is no good reason why Wendy’s and McDonald’s should be allowed to use trickery in their advertising'

Wendy’s and McDonald’s are being taken to court over the size of their beef patties.

The two fast food giants have been named in a 35-page class-action complaint, which comes 50 days after similar allegations were made against Burger King.

Attorneys Anthony J. Russo and James C. Kelly sent a copy of the filing to FOX Business shortly after it was submitted to the United States District Court For The Eastern District Of New York, on Tuesday, May 17.

Wendy's and McDonald's signs

Wendy’s and McDonald’s are being taken to court over the size of their beef patties 50 days after similar allegations were made against Burger King. The complaint against Wendy’s and McDonald’s demands a jury trial. The complaint against Burger King (iStock)

Russo and Kelly are representing Justin Chimienti, a resident of New York, and "similarly situated individuals" who feel burger ads from Wendy’s and McDonald’s are misleading. The complaint demands a jury trial.

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Much like the complaint Russo and Kelly filed against Burger King on March 28, the complaint against Wendy’s and McDonald’s cites various food reviews on YouTube and lifestyle publications that note inconsistencies in menu item sizes and advertisements as well as a list of protests made public on social media.

Unlike the Burger King complaint, this filing cites a 2014 video interview with personal finance news website Money Talks News, where a food stylist revealed she prefers to undercook burger patties so it has a fuller appearance. In the video, the stylist works with "a simple burger purchased from a grocery store," according to the narrator, who is also the founder of the news site.

The stylist has worked with Wendy’s and McDonald’s, according to her online portfolio. 

FOX Business reached out to the stylist, Wendy’s and McDonald’s for comment.

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Russo and Kelly’s class-action complaint alleges that "meat shrinks 25% when cooked," but Wendy’s and McDonald’s burger patties appear "approximately 15-20% larger" in ads compared to what’s served to customers in real life.

The complaint claims Wendy’s "materially overstates" the patty size and topping amount in its Bourbon Bacon Cheeseburger. 

Wendy's Bourbon Bacon Cheeseburger

A pending class-action complaint alleges Wendy’s ‘overstates’ its Bourbon Bacon Cheeseburger in advertisements with beef patties that appear up to 20 percent larger. (Wendy's)

It also names 18 other burgers that have "overstated" representations depicted in advertisements, including the Big Bacon Cheddar Cheeseburger, the Big Bacon Cheddar Cheeseburger Double, the Big Bacon Cheddar Cheeseburger Triple, the Bourbon Bacon Cheeseburger Double, the Bourbon Bacon Cheeseburger Triple, Dave’s Single, Dave’s Double, Dave’s Triple, the Baconator, the Son of Baconator, the Big Bacon Classic, the Big Bacon Classic Double, the Big Bacon Classic Triple, the Bacon Double Stack, the Jr. Bacon Cheeseburger, the Jr. Cheeseburger Deluxe, the Jr. Cheeseburger and the Double Stack.

As for McDonald’s the complaint claims the fast food chain "materially overstates the size of the beef patties for nearly every menu item in its current advertisements."

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The McDonald’s menu items the complaint names as "overstated" include the Big Mac, the Quarter Pounder, the McDouble, the Cheeseburger, the Double Cheeseburger and the Hamburger.

Little Mac Double Mac MCDONALDS

The complaint also alleges McDonald's ‘overstates’ its burger lineup in advertisements, including the signature Big Mac. (McDonald's)

In particular, the complaint said McDonald’s Cheeseburger advertisements show "the beef extending all the way to the edge of the bun," but customer photos show the real-life patty "comes nowhere near the edge of the bun."

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Kelly told FOX Business that he thinks it’s important to protect consumers from materially false advertisements, so they won’t feel cheated or disappointed.

"There is no good reason why Wendy’s and McDonald’s should be allowed to use trickery in their advertising," Kelly wrote in an email. "We hope that through these class actions, these iconic companies will recognize the unfairness of their advertising and make positive changes."

Fast food worker makes burger

In the last year, fast food chains have been taken to court with ‘consumer fraud’ allegations. (iStock)

Russo and Kelly’s class-action complaint argued that overstated burger ads are "unfair and financially damaging" to consumers and fast food competitors.

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"Defendants advertise larger portions of food to steer consumers to their restaurants for their meals and away from competitors that more fairly advertise the size of their burgers and menu items, unfairly diverting millions of dollars in sales that would have gone to competitors," the complaint said. 

Man eats burger in car

The class-action complaint highlighted various food reviews and social media protests that acknowledged inconsistencies in popular fast food menu item sizes and advertisements. (iStock)

It goes on to allege that Wendy’s and McDonald’s customers are receiving food that’s "much lower in value than what is being promised" and the marketing tactic of overstating burgers in advertisements is "especially concerning now that inflation, food, and meat prices are very high and many consumers, especially lower income consumers, are struggling financially."

Ticker Security Last Change Change %
MCD MCDONALD'S CORP. 252.96 +6.08 +2.46%
WEN THE WENDY'S CO. 19.36 +0.48 +2.54%
QSR RESTAURANT BRANDS INTERNATIONAL INC. 51.59 +1.44 +2.87%

Plaintiffs are seeking monetary damages, injunctive relief that corrects overstated ads and any other relief the court deems "necessary and appropriate."