Photo from the complaint
NEW YORK – There is still some fat to chew in the lawsuit that complains Arby’s Beef ‘N Cheddar sandwiches are much smaller in real life than they are in the company’s advertisements.
Plaintiff Joseph Alongis and his lawyers can pursue claims over sandwiches more than a half-pound, New York federal judge Nusrat Choudhury decided Sept. 29. She tossed claims over half-pound roast beefs and Beef ‘N Cheddars.
The lawsuit was brought in 2023 under New York’s consumer protection law and alleged the advertisements were misleading, claiming sandwiches marketed as “double” did not actually have twice the meat of the regular. Other fast-food chains have faced similar litigation.
“(T)he sandwiches that Alongis received ‘contained less than half of the amount of meat than he expected,’” Choudhury wrote. “The amended complaint further alleges that Alongis ‘would not have purchased’ the purchased sandwiches ‘and/or he would not have paid the price that he paid,’ if he ‘knew that (they) contained less than half of the amount of meat as advertised.’
“Based on these allegations, the amended complaint plausibly alleges that Alongis would have paid less for the purchased sandwiches had Arby’s advertisements not materially misled him into believing that the purchased sandwiches would contain at least double the amount of meat as compared to what he actually received.”
A group of previous rulings were considered by Choudhury. A fellow NYC federal judge ruled for Wendy’s after it showed it used the same amount of meat in ads and in stores – it’s just that the store versions were cooked longer and reduced more in size.
A case against Kellogg over fresh strawberries on packaging of pastries did not mislead consumers into thinking there were other fruit ingredients, according to another judge. And in failed lawsuits against McDonald’s and Coca-Cola, plaintiffs alleged to be tricked by photos with an ingredient that was not used in the final product (e.g., no vanilla bean in vanilla ice cream).
But the case against Arby’s cleared this first hurdle, though it lost claims for half-pound sandwiches. Lawyers representing Alongis are James Kelly of New York and Anthony Russo Jr. of Florida.
They also filed the case against Wendy’s over the size of its burgers, which was tossed in 2023.
