Tags: Legal Puffery

Finger Lick'n Good!!

Have you ever watched a food commercial that displays the picture perfect fast food sandwich, impeccably layered with all the fixings visible to the naked eye.  Now craving that sandwich as real and ready for your immediate consumption, you head to the advertised restaurant and order the mouthful of joy.  While at the drive-through, the picture looks like the one you just saw on TV.  As you wait in line, you can taste the visual image of what you saw.  When you are handed the sack with your sandwich inside, you pull over into a designated parking space and whip out the sandwich.  "What is this?" you ask yourself.  You cannot even see the patty, lettuce, tomato and onion as you hold the sandwich in your quivering fingers close to your face peeking curiously into the crevice between the buns.  Sound familiar?  Of course!

Well, a Hudson Valley New York resident is suing Kentucky Fried Chicken for $20 million alleging the bucket of KFC chicken handed to her did not resemble the heaping bucket of chicken advertised on TV.   Anna Wurtzburger claims KFC engaged in false advertising when she was disappointed to find it looked much different than what was in the chain’s ads. Ms. Wurtzburger, a retiree on Social Security, is quoted as saying, "I came home and said, ‘Where’s the chicken?’ I thought I was going to have a couple of meals.  They say it feeds the whole family … They’re showing a bucket that’s overflowing with chicken!  You get half a bucket!  That’s false advertising, and it doesn’t feed the whole family. They’re small pieces!”

Putting her money where her hungry mouth is, Wurtzburger hired a lawyer and filed a lawsuit, demanding KFC change its advertising.  She also returned two gift certificates the company sent her as a mea culpa

Does the complainant have a case?  The Federal Trade Commission in the United States defines puffery as a 'term frequently used to denote the exaggerations reasonably to be expected of a seller as to the degree of quality of his product, the truth or falsity of which cannot be precisely determined' (FTC 2004).  Puffery may be visual in nature and can generate expectations that in many cases exceed actual product evaluations.  Experts suggest that while verbal puffery is legal because it is presumed not to be effective, visual puffery may be quite effective and might help marketers.  Clearly, Ms. Wurtzburger is alleging heightened expectations as a consumer resulting from KFC's visual puffery influencing her purchasing behavior.  KFC claims their depiction of chicken pieces stacked above the top of the bucket is done so in order to show the chicken that otherwise could not be seen positioned inside the bucket.  Ms. Wurtzburger counters that all KFC has to do is place the chicken on a plate instead of a bucket.  Whether this lawsuit complaint survives pretrial scrutiny and is actually tried before a judge and jury is questionable.

In the end, this KFC lawsuit reminds us that the objective truth can sometimes be elusive and consumers must be savvy, if not honest, in their appreciation for legal puffery in the marketplace.

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