Don’t WING It When It Comes to Advertising

While college basketball fans have been rushing to sports bars to eat wings and watch their teams make a run for the championship, one sports bar has been facing a class action lawsuit over its marketing of its chicken products. An individual in Illinois has sued Buffalo Wild Wings, alleging that the company has misled consumers by selling “boneless wings” that do not contain any meat from the actual wing of the chicken. Like Purdue fans after seeing their team lose to Fairleigh Dickinson, the individual was allegedly upset when he learned that Buffalo Wild Wings “boneless wings” are not actually wings that have been deboned, but rather chunks of chicken breast. (This same plaintiff sued KIND over a claim that its granola bars were high in fiber, Tom’s of Maine for labeling its Wicked Fresh! Mouthwash as “natural,” and Reynolds Consumer Products over the recyclability of its Hefty-brand trash bags.) The court dismissed the lawsuit against Buffalo Wild Wings without prejudice due to a jurisdictional issue.

Jurisdictional defects aside, to succeed on his deceptive marketing claim under Illinois law, the plaintiff will need to prove (1) that labeling boneless chunks of chicken breast as “boneless wings,” is deceptive, (2) that Buffalo Wild Wings intended for plaintiffs to rely on that deception, (3) that the deception occurred in the course of trade or commerce, and (4) damages proximately resulting from the deception.

Interestingly, this is not the first time a company faced a class action lawsuit for not giving customers wings. In 2013, Red Bull GmbH faced a class action lawsuit over its “Red Bull Gives You Wiiings” advertisements. The plaintiffs in that case did not allege that they were deceived into believing that they would grow wings if they drank a can of Red Bull, but rather that through its marketing efforts, Red Bull misled consumers into believing the effects of drinking Red Bull were superior to other caffeinated drinks. In reality, Red Bull’s products contained similar amounts of caffeine to a cup of coffee. Without admitting that its advertisements were false, Red Bull eventually agreed to pay over $13 million to settle the class action lawsuit.

These wing-based cases serve as a reminder to businesses to exercise caution when advertising their goods and services. Under federal law, a business may be liable for false advertising if:

1. The advertisement contains a false or misleading statement;
2. The statement has a tendency to deceive a substantial portion of the intended audience;
3. The deception is material to purchasing decisions;
4. The advertised goods travel in interstate commerce; and
5. There was a likelihood of injury to the plaintiff.

Avoiding a false advertisement suit seems relatively straightforward in that all that is required is the advertisement be truthful. However, issues can arise when multiple or conflicting definitions apply to a particular term or phrase, or when a statement that is truthful on its face is open to more than one interpretation. Therefore, it is important for businesses to determine how consumers view advertising statements, particularly those going to measurable product performance or attributes that are material to the purchasing decision.

This article appeared in the March 2023 issue of MarkIt to Market®. To view our past issues, as well as other firm newsletters, please click here.