Ok, UY, so how much beef, by percentage, must be contained within the "seasoned ground beef" for it to be accurate?
Well, Bob, it doesn't actually matter. This is a consumer's rights case, not a case about regulations. Once again, because so many people don't seem to pay attention:
Company says A.
1) Is A true? Yes.
2) Does A contain anything that is untrue?
If Yes, the advertising must change (or the product, but we'll ignore that option for convenience). Go to #4.
3) Does A
imply something about the product that either by wording or omission?
If No, then Case Closed.
If Yes, Continue...
3.1) Is the implication true?
If Yes, then Case Closed.'
If No, then Continue...
3.2) Is the implication material to consumers acting reasonably?
If No, then Case Closed.
If Yes, then Continue...
3.3) Is there a significant/substantial percentage of consumers acting reasonably who would perceive the above implication?
If No, then Case Closed.
If Yes, then Company must change their advertising.
Continue...
4) Did the company knowingly misrepresent themselves?
If No, then No Damages.
If Yes, Continue...
4.1) When notified of the problem, did the company remedy the situation?
If Yes, then No Damages.
If No, then Determine Damages.
That's how this thing plays out. Here are some examples:
Company says, "Buy one gallon of gold paint for $14.99!"
1) The offer is true. They have one gallon cans of gold colored paint for sale at $14.99.
2) Nothing is untrue.
3) Does it carry an implication? Yes. It's possible someone could believe the paint was intended for use on gold (the element) or contain gold.
3.1) The implication is not true. The paint is not intended for use on gold nor does it contain gold.
3.2) Is it material? Sure, if you happen to be looking for something to paint gold or paint with gold in it.
3.3) Would a substantial number of people get that impression? Nope. Maybe some knucklehead would, but the can says "interior paint" and gold is so damned expensive there's no way they could sell it for $15/gallon. It's just not very likely that many people would get the implication above. Case closed.
Company says, "New, super fast computer with a genuine Intel chip inside!"
1) This is true.
2) Nothing is untrue.
3) Implication? Yes. It implies an Intel CPU instead of an AMD CPU.
3.1) The implication is not true. It has an AMD CPU. The Intel chip is on the built-in network card.
3.2) A reasonable person would consider the type of CPU as important to the purchase.
3.3) Lots of people would assume that the CPU on the computer was from Intel considering the Intel Inside marketing campaign.
Hopefully you get the drift now. Essentially this is the above is the decision tree for cases like this. I just slapped it together, but it pretty much gets the point across. Here's how it applies in this case.
1) All true.
2) Nothing untrue.
3) There's an implication by omission - no mention of the extenders, so the implication is that it's only beef and seasoning.
3.1) It's not just beef and seasoning. There's yeast, isolated oat product, oats, and some other stuff.
3.2) Somebody buying a taco cares what the primary ingredient is, so it's material.
3.3) This is the unknown - we don't know how many people would draw such a conclusion. What seems to confuse people is that just because there are those who don't draw that conclusion doesn't mean that 3, 3.1, and 3.2 don't apply. There is no implicit "everyone" in those tests - it's just a
somebody.
When it comes to the FTC, which is not a player in this case, but I'm confident the court will lean on their precedents, the deal with this in different ways. In the Intel example, the court would probably conclude that it's so obviously misleading that they don't need to see evidence of consumer confusion. They would just rule against the company.
In the gold paint example, the court would probably in a very nice way say, "Okay, that's just stupid. No reasonable person would think that a $15 gallon of gold paint contains gold nor are people likely to buy a gallon of house paint to paint - who the hell paints gold anyway? They would toss the or rule in favor of the company.
Now, my
opinion is that the court would want to look at the Taco Bell case further for several reasons:
1) Taco Bell calls it taco meat filling internally and something else externally while all of the other components have the same name internally and externally.
2) If Taco Bell wanted to sell just their taco filling in individual packets, they could not legally call it seasoned ground beef nor could a consumer even buy from a grocery store seasoned ground beef that contained those meat extenders. This is good evidence that at least some people might think the filling doesn't contain any extenders.
3) If a competitor wanted to market tacos without extenders, they would call it seasoned ground beef as well, which would be confusing to customers. They could advertise it as 100% seasoned ground beef or something similar. However, Taco Bell sells chicken and steak tacos. Neither one contains extenders like isolated oat product or oats - they just contain the ordinary starches used as thickeners for seasoning. If they don't use some other descriptor to indicate that there are no extenders, then why should anyone else? And why should they market their seasoned ground beef with extenders the same way they do those without?
In this case I would expect to see some customer surveys examining expectations based on the marketing materials and actual ingredients. Creating such a survey would be tricky, but I think it will come down to that.
At this point, all I'm really interested in debating is whether people think my decision tree is substantially incorrect. Thus, Bob, I'm not going to play the "what percentage" game with you.
On a side note to those who claim that isolated oat product is to keep it moist. I call ********. They don't put it on their other meat products. How come those don't dry out? It's being used as a meat extender. Jack in the Box does it with texturized soy protein. They also call it "spicy beef" so they are probably watching anxiously to see what happens in California.
I can see it now - a little asterisk on Taco Bell's ads that reads, "It is known to the State of California that the seasoned ground beef in our tacos is actually taco meat filling."
) They simply choose not to because these other factors are more valuable to them.
