This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.
A Subway customer filed a nationwide class action lawsuit in the federal district court in Chicago, alleging that Subway violated the consumer protection statutes of all 50 states and the District of Columbia, after measuring a “Footlong” sandwich purchased from Subway and realizing it was less than 11 inches long (Buren v. Doctor’s Associates, Inc., No. 1:13-cv-00498, January 22, 2013).
Subway advertises and sells submarine sandwiches labeled as “Footlong” subs. The complaint alleges that, because the actual length of the sandwiches falls short of 12 inches, customers pay more than they should have in reliance on Subway’s advertising. Advertising on television, in print, on the radio, and on the Internet allegedly misleads consumers into believing that they are receiving a 12-inch sandwich when they actually receive less.
In marketing and advertising materials, Subway references the length of the “Footlong” subs by having actors or artists’ renderings hold their hands approximately one foot apart, and includes a graphic between the actors’ hands indicating that the hands are one foot apart.
The customer, Nguyen Buren, alleged a class action on behalf of “All persons in the United States who purchased SUBWAY® ‘Footlong’ submarine sandwiches that were less than 12 inches long.”
The complaint sought to enjoin Subway from using the allegedly deceptive advertising and requested restitution, actual damages, treble damages, punitive damages, attorney fees, and costs of suit.
Similar lawsuits have been filed in the Court of Common Pleas in Philadelphia County and in New Jersey Superior Court, Burlington County.
The Pennsylvania complaint alleges a state-wide class action brought under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) “over identical, false, affirmative misstatements of material fact and knowing material omissions made by Subway regarding its trademarked ‘Footlong’ sandwich” starting in January 2007 and continuing to the present (Roseman v. Subway Sandwich Shops, Inc., No. 130102647, January 24, 2013).
“The discrepancy in size between the uniform statements in Subway’s signs, menus and advertising regarding the size of this sandwich and the actual size of this sandwich is not an accident nor is it the result of any variation in size among such sandwiches,” the complaint charged. “Rather, Subway has admitted in communications with the press that this sandwich is made according to exacting, uniform procedures and specifications imposed by Subway upon its franchisees and stores, all of whom are required by Subway to use specified ingredients in specified amounts.”
The action “aims at obtaining redress under the Pennsylvania UTPCPL for those persons in Pennsylvania who received less than what they were promised when they purchased a ‘Footlong’ sandwich in Pennsylvania between January 24, 2007 and the present.” It asks the court to certify the class, enter an order for injunctive and declaratory relief, assess damages and trebled damages, and award attorney fees and costs.