A class-action lawsuit against Buffalo Wild Wings alleges that the famous wing chain engaged in deceptive practices and false advertising because the company’s “boneless” wings are actually made with breast meat.
But does this “fowl” case have wings, or is it really just a turkey?
Let’s take a look at the meat of the matter and explore the beef (or poultry?) in more detail!
The Squawk
Buffalo Wild Wings has never made any bones about the fact that so-called boneless wings aren’t actually wings at all. If you’ve ever tried to debone a chicken wing, you know it’s a very labor-intensive process that results in very little actual meat at the end.
That’s why wings are almost universally sold with the bones in—the labor cost of producing true boneless wings would be astronomical and the corresponding menu cost of such “true” boneless wings prohibitive to the average customer.
However, for people who find bones in their chicken objectionable for whatever reason, it only makes sense for restaurants to offer a “boneless” version. This helps reduce choking hazards and permits an alternative to traditional wings for those who want the flavor but not to have to deal with the bones.
In the culinary world, this usually means using breast meat cutlets or tenders which are battered, fried, and coated with the sauces, spices, and/or seasonings customers want.
They get the same taste of wings without the muss and fuss associated with eating traditional “real” chicken wings. Again, this is a common practice that virtually every chain and restaurant offering so-called boneless wings engages in, although many if not most such companies do make a point to note when their “wings” aren’t actually wings, at least by the “According to Hoyle” definition.
So what the cluck is going on here?
The suit alleges that Buffalo Wild Wings did not clearly and prominently disclose the true nature of their boneless wings to customers, therefore de facto engaging in false advertising.
If the chain had made such a disclosure, the suit claims, and the original plaintiff in the case and the other customers who have joined the suit had known they were not, in fact, eating actual wing meat, they would either have insisted on paying less for them (again, because breast meat costs less than wings in the current market) or chosen to order something else.
Essentially, if they’d wanted chicken nuggets or tenders, which the suit says the boneless wings are more closely related to than actual wings, they would have ordered chicken nuggets or tenders and not boneless wings to start with.
The suit further claims that customers should be able to rely on the plain meaning of the names and offerings on the menu and not have to guess or ask what they’re actually ordering or eating. Plaintiffs are seeking injunctive relief and punitive damages, as well as requiring BWW to ensure the menu language clarifies exactly what customers are ordering when they order boneless wings.
Part of the backlash appears to stem from a report noting that chicken breast meat is around $3/lb less than wing meat at the present time.
The disparity is a significant reversal from the Great Depression, when chicken wings became a popular food among the poorer segments of society because they were considered largely inedible or worthless by the wealthy of the day.
Between the current popularity of wings and spiraling inflation lies a simple matter of supply and demand: you can manipulate how much breast meat a single fowl produces, but that same fowl will inevitably have only two wings, barring some really strange genetic engineering tricks that a) haven’t been reliably perfected and b) would raise their own set of questions and ethical and moral issues for carnivorous connoisseurs.
From this perspective, the plaintiffs might have just enough of a point to convince the right judge and jury, although one Illinois judge has already tossed the case out due to procedural issues.
Under the Lanham Act, which protects intellectual property and the consumers of same from infringing behavior, one of the provisions is false advertising, ie, claiming a product is sourced, produced, or endorsed by a party that had no such involvement or that a product is made or sourced from something or somewhere other than what it purports to be.
The intent of this provision is to prevent customers from being confused or injured by, or duped into purchasing or using, products that are not authorized by the original IP owner or are deceptive in some way. This provision of federal law is backed by a number of other statutes that further define false advertising and when and how it applies.
In this regard, the plaintiffs do have something at least resembling a point…but do they have a case?
Buffalo Wild Wings Responds
BWW clapped back with a humorous take on this legal cockfight on Twitter, saying:
“It’s true.
Our boneless wings are all white meat chicken.
Our hamburgers contain no ham.
Our buffalo wings are 0% buffalo.”
The point, of course, was to illustrate the silliness of the case. It’s common knowledge that “hamburger” was originally known as “Hamburg steak” because the process for creating this beef product was invented in Hamburg, Germany. Today, hamburgers are considered a quintessentially American food, even though they contain no ham or any obvious present-day connection to Hamburg, Germany.
Likewise, the observation that Buffalo Wild Wings’ products contain no actual bison meat is a snarky but salient riff on the fact that buffalo wing sauce was invented in Buffalo, New York.
As such, the sauce has exactly nothing at all to do with large bovines other than being a twice-removed namesake, and in no way, shape, or form counts an actual buffalo as an ingredient. Hot dogs are not made from man’s best friend, French fries are not sourced in Paris, and bourbon whiskey is not only distilled on a single street in New Orleans. All of these are well-known facts among the average American population.
Taking these points in conjunction with the fact that most people are well aware that boneless wings aren’t actually made from wing meat, Buffalo Wild Wings would seem to have gotten the message across.
But is there any chance the court or a jury could find for the plaintiffs in this matter if it’s refiled in a way that would satisfy the courts?
One of the standards for false advertising is the question of what constitutes a sophisticated customer. That is to say, will a customer of average intelligence, education, and knowledge be able to readily differentiate between similar products and choose the product which best meets the customer’s intentions and needs?
The plaintiffs argue that BWW calling breast meat “boneless wings” is a deliberate deception. However, it can be argued that this definition relies heavily on the consumer being a native, English-speaking resident of America with an American education.
This definition would, by its very existence, create a subclass of consumers who are effectively excluded from its protection, namely first-generation, non-English-speaking-as a-first-language immigrants, who may not fully grasp or understand idioms and puns that are commonplace in American culture.
I’m not saying that’s what happened here, as I’m not familiar with the people involved except for what I’ve been able to glean from my own cursory evaluation of the case, but the likelihood seems high enough that it would be imprudent to ignore.
So Let’s Talk Turkey (Or Chicken)…
With the caveat that false advertising and consumer advocacy are not fields in which I specialize, I feel fairly comfortable making some observations and predictions about how this case might play out.
On its surface, there’s enough of a gray area here that Buffalo Wild Wings probably shouldn’t get too comfortable with holding the high ground. Photos of the company’s menu illustrate the plaintiffs’ point, and although there is an argument to be made for “common knowledge” that simply never reached the plaintiffs, that illustration coupled with BWW’s own smart-aleck admissions in the tweet above could be enough to create a problem that sends the popular chain to the negotiation table.
This is because it’s usually cheaper, easier, and results in less bad publicity than digging in and going all the way to a jury trial with an uncertain outcome.
On the flipside of that coin, the plaintiffs shouldn’t get complacent or cozy with expecting to have it all their own way either. They could easily wind up with the court ordering the chain to add a prominent disclaimer as to the exact meat composition of their products but reject the argument that lasting financial or other injury exists.
This would leave the plaintiffs looking foolish, out a significant sum of time and money on legal and other associated expenses of this suit, and adding yet another frivolous lawsuit to the Legal Action Hall of Shame that sucks in hundreds of suits of this type every year–and which would have their names plastered all over it.
In the end, I think this will be a case to watch more for how the Lanham Act and other related consumer protection rules, regulations, and statutes are invoked and applied, plus for its downstream effects on other actions of this type, than for the actual value or merit of the case (unless we include the entertainment value and the wealth of poultry-related puns it promises to offer the observer).
But someone’s going to end up being crowned Cock of the Walk…and the other party (or parties) are sure to find themselves really clucking angry and with egg on their faces!
ABOUT JOHN RIZVI, ESQ.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
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