Judge dismisses lawsuit against McDonald's and Wendy's that claimed their burgers looked much bigger in ads than in real life

• A lawsuit said McDonald's and Wendy's overstated the size of their patties in adverts for nearly every product.
• The adverts used undercooked patties to make them look bigger, the lawsuit said.

A judge dismissed a lawsuit that said McDonald's and Wendy's burgers looked much bigger in ads.

The lawsuit, filed in May 2022 by Justin Chimienti, accused the fast-food chains of "unfair and deceptive trade practices," saying that they "falsely advertised" some of their menu items.

The lawsuit said that McDonald's and Wendy's both overstated the size of their beef patties in their adverts for nearly every product, with a particular focus on Wendy's Bourbon Bacon Cheeseburger.

The chains used photos of patties that weren't fully cooked "to make it appear that they are approximately 15-20% larger than the beef patties that are actually served to customers," the lawsuit said, noting that meat generally shrinks by a quarter when cooked.

The lawsuit, filed in the Eastern District of New York, cited social-media reviews from YouTube and X users who complained that their burgers were smaller than expected.

Wendy's adverts also exaggerated the amount of the toppings its burgers featured, the lawsuit said, without giving specifics.

Chimienti said that he'd bought a Bourbon Bacon Cheeseburger and a Big Bacon Cheddar Cheeseburger from Wendy's and a Big Mac and a cheeseburger from McDonald's. He said that he expected the burgers to be similar in size to the pictures of the burgers in adverts but that they were "much smaller than advertised."

The four-count lawsuit asked for punitive and compensatory damages as well as an order for the chains to stop selling the burgers or to change their adverts.

McDonald's and Wendy's filed motions to dismiss the lawsuit last September. US District Judge Hector Gonzalez granted the chains' motion on September 30, 2023, which he said was "principally because the advertisements were not misleading as a matter of law."

Gonzalez said in his decision that Chimienti had not stated in the lawsuit that he actually saw adverts for burgers from McDonald's and Wendy's prior to buying them, nor did he refer at all to adverts for two of the burgers he purchased.

Chimienti also "fails adequately to allege that a reasonable customer would likely be misled" by the adverts about the size of the burgers, Gonzalez wrote, noting that both McDonald's and Wendy's websites list their calorie content while Wendy's also lists the weight of the patties.

Insider has commented Chimienti's lawyers for comment.

One of the lawyers representing Chimienti, New York-based James C. Kelly, has also filed similar class-action cases against Taco Bell and Arby's. A judge in August turned down Burger King's motion to dismiss a lawsuit filed by Kelly which said that its Whoppers looked much larger and meatier on its menus.