Deceptive Advertising ExpertRecently, a group of individuals filed a class action lawsuit against a large fast food chain, alleging that they were injured by a pattern of deceptive advertising. See, e.g., Tribune Media Wire & Chris Wolfe, “Los Angeles-Area Customers Sue Chipotle Over ‘300-Calorie’ Chorizo Burrito,” KTLA.com, Nov. 22, 2016. According to the plaintiffs, the food retailer advertised one of its menu items as containing only 300 calories, when, in actuality, the total was over 1,000. See id. This article examines the class action lawsuit involved and assesses the deceptive advertising experts are likely to play as witnesses in resolving the case.

Discussion:

In this instance, what is at issue is whether or not the food chain in question practiced deceptive advertising. According to the plaintiffs, there was indeed deception in the restaurant’s signage, which all indicated that the menu item at issue was only 300 calories total. See id, e.g. However, the defendants have advanced the claim that there was no deceptive advertising and that the 300 calorie claim was intended to reflect the number of calories in the meat alone, not in the total entree. See id, e.g.

In cases alleging deceptive advertising, many issues may be at play. The lawsuit in question was filed in Los Angeles, so the laws involved would presumably be any state and federal regulations that govern the matter. In such cases, the laws that would apply might include the California Business and Professions Code (CBPC), which defines and prohibits “untrue or misleading advertising,” as well as “Truth in Advertising” laws that the Federal Trade Commission (FTC) oversees. See CBPC §§ 17200, 17500; see FTC, “Truth in Advertising,” https://www.ftc.gov/news-events/media-resources/truth-advertising (last visited Nov. 22, 2016). Accordingly, expert witnesses may be needed to serve as witnesses to help assess two different claims: the state and the federal law issues.

Specifically, advertising experts will play an important role in determining basic issues of fact, such as what the average consumer would understand the restaurant’s advertising to mean. Another type of expert that is frequently utilized in cases of this nature is the consumer behavior expert, who analyzes and explains how typical customers would be expected to react to a particular type of marketing. Advertising experts in market research and trends will also prove useful in litigation of this nature.

In addition, as in any lawsuit, for the plaintiffs to prevail, they would need to prove that the alleged deceptions caused some type of harm or injury that a court can address. Experts will undoubtedly play a key role here, as it can be difficult to put a price tag on claims of this nature. Some of the plaintiffs’ stated injuries have been somewhat nebulous thus far. For example, one plaintiff asserted that the advertising in question caused that individual to believe he or she was “eating healthily.” See Tribune Media Wire & Chris Wolfe, supra, e.g. It will likely be up to the experts to explain to jurors how such a mistaken belief might result in harm to a party that a court should provide legal redress for.

Conclusion:

In the case at hand, the plaintiffs’ attorneys have sought to broaden their potential class, arguing that anyone who purchased food at the restaurant in question as long as four years ago may have a claim because “the signage is part of a pattern by the chain of presenting misleading nutritional information and ‘deceptive business practices,’” Id. In the event that the class becomes larger, additional types of experts may be needed, including class certification experts, who can help to determine just how large the class should be for this particular matter. In any event, attorneys on both sides of this and similar issues will find expert witnesses to be key players in resolving these matters successfully.

 

By: Kat S. Hatziavramidis, Attorney-at-Law