When it falsely misrepresents the product.  That is the charge levied against Subway Restaurants, Inc. by putative class action members in the Eastern District of New York.  They allege that Subway’s advertising “misleadingly, inaccurately and deceptively” depicts Subway sandwiches as containing 200% more meat than they actually contain, in violation of New York’s UDAP and false advertising laws (New York General Business Law, Sections 349 and 350). 

The sandwiches in question, pictures of which are shown in the complaint, are the Steak & Cheese and the Cheesy Garlic Steak.  Suffice it to say that, at least as shown in the complaint, the ads show a big stack of succulent meat and the real-life sandwiches are, well, a little sad and appear to have a lot more bread than meat.

Will the plaintiffs succeed here?  The court may well be guided by the reasoning in a similar case brought against Wendy’s, also in a New York court, and blogged about by my partner Jeff Greenbaum.  There, the court dismissed the action, determining that consumers would not have been misled by advertising that shows a burger that is bigger than what consumers actually receive because the ads actually used the same amount of uncooked meat as what is served in the restaurants.  In other words, although the burgers in the ads may have looked more appetizing and bigger than the real thing, they didn’t actually contain more meat in the ads than in real life, so there was no material misrepresentation of fact.   

So, do the Subway sandwiches shown in the ads actually contain 200% more meat than what the restaurants sell, or do they just appear to because of how they are prepped and styled?  That’s likely to be a key issue for the court. Also, do consumers even understand the Subway ads to be communicating specific claims about the sandwiches and how much meat they contain, or will they simply interpret the images as communicating stylized beauty shots?  In other words, do consumers of quick service restaurant products really rely on what’s shown in the ads as objective representations of what they buy?  Or do they understand that there’s some creative license at work? 

If the case doesn’t settle quickly, it’s likely that these will be the very issues for the lawyers to explore in discovery and for the court to address. In the meantime, advertisers would be wise to keep a few black letter advertising principles in mind: when advertisers use demonstrations in their ads to communicate specific, objective claims about the product, they must be able to substantiate those claims. Further, if an ad communicates that what consumers are looking at is the real thing, and not just a dolled up version of the real thing, then it must be so.  Which side of the line the Steak & Cheese pix fall remains to be seen.

Tollison vs. Subway Restaurants, Case 1:24-cv-07495 (E.D.N.Y, filed 10/29/24)