What exactly is the legal issue...a couple of meatheads from New Jersey kvetching over the length of their sandwiches? Christ on sale people are so damn sue-happy these days...I hate to burst your bubble but this is the most ludicrous thing I have ever heard of....well..aside from the two idiots who are trying to sue Lance Armstrong because they bought copies of his book and it turns out he is a fraud. That's pretty damn ridiculous too. I mean...think about this...say it turns out the story of Jesus and the rest of the Bible is untrue...are people going to next be suing the people who wrote the Bible...in absentia? Or the bookstores they bought them from?
...or what about Baskin Robbins? You go in there and they're out of three of their 31 advertised flavors...so now it's 28 flavors...do you sue them for falsely advertising on their sign that they offer 31 flavors? Where does this kind of crap end?
Consumer protection and civil suits depend upon the law (statutory and case) in a particular jurisdiction.
I am constantly amazed at the lack of knowledge of basic consumer rights by BC residents and the remedies available to them. I have lectured on this in the past at the Vancouver Peoples Law School (http://www.publiclegaled.bc.ca/
) to educate consumers. This is the sort of thing that along with such matters as employee rights under the Employment Standards Act and a persons rights in dealing with debt collectors that should be taught in school.
The legal issue is whether "footlong" is a marketing description or a representation of the product itself (i.e a sub loaf 12 inches in length). If the former then it would not matter if the product was less than 12 inches in length but if the latter then it would be a deceptive practise under consumer law. In BC we use the term "material fact" in our consumer protection legislation to differentiate and you would need to examine the case law to determine circumstances that apply for liability to follow.
An example discussed above is lumber marketed as a "2 x 4" when in fact the nominal dimensions do not match the product description but this is not considered deceptive given the common understanding and industry usage.
Companies can also limit liability by making it clear that the description of the good applies only in particular circumstances - the example of McDonald's "Quarter Pounders" that provides the weight representation only applies to the meat patty prior to cooking.
Lance Armstrong is being sued along with the publisher over alleged lies in his books and there appear to be grounds based upon the particular facts.http://www.bbc.co.uk...t-arts-21193850
As far as Baskin Robbins consumer legislation distinguishes between a business being out of stock of an item as opposed to not carrying it at all or misrepresenting its qualities or attributes.
In BC the BUSINESS PRACTICES AND CONSUMER PROTECTION ACT provides as follows (and note the burden of proof is on the supplier to disprove the claim):http://www.bclaws.ca...eeside/04002_00
Deceptive acts or practices
4 (1) In this Division:
"deceptive act or practice" means, in relation to a consumer transaction,
(a) an oral, written, visual, descriptive or other representation by a supplier, or
(b) any conduct by a supplier
that has the capability, tendency or effect of deceiving or misleading a consumer or guarantor;
"representation" includes any term or form of a contract, notice or other document used or relied on by a supplier in connection with a consumer transaction.
(2) A deceptive act or practice by a supplier may occur before, during or after the consumer transaction.
(3) Without limiting subsection (1), one or more of the following constitutes a deceptive act or practice:
(a) a representation by a supplier that goods or services
(i) have sponsorship, approval, performance characteristics, accessories, ingredients, quantities, components, uses or benefits that they do not have,
(ii) are of a particular standard, quality, grade, style or model if they are not,
(iii) have a particular prior history or usage that they do not have, including a representation that they are new if they are not,
(iv) are available for a reason that differs from the fact,
(v) are available if they are not available as represented,
(vi) were available in accordance with a previous representation if they were not,
(vii) are available in quantities greater than is the fact, or
(viii) will be supplied within a stated period if the supplier knows or ought to know that they will not;
(b) a representation by a supplier
(i) that the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have,
(ii) that a service, part, replacement or repair is needed if it is not,
(iii) that the purpose or intent of a solicitation of, or a communication with, a consumer by a supplier is for a purpose or intent that differs from the fact,
(iv) that a consumer transaction involves or does not involve rights, remedies or obligations that differs from the fact,
(v) about the authority of a representative, employee or agent to negotiate the final terms of a consumer transaction if the representation differs from the fact,
(vi) that uses exaggeration, innuendo or ambiguity about a material fact or that fails to state a material fact, if the effect is misleading,
(vii) that a consumer will obtain a benefit for helping the supplier to find other potential customers if it is unlikely that the consumer will obtain the benefit,
(viii) that appears in an objective form such as an editorial, documentary or scientific report if the representation is primarily made to sell goods or services, unless the representation states that it is an advertisement or promotion, or
(ix) to arrange for the consumer an extension of credit for a fee, unless the fee is deducted from the advance, as defined in section 57 [definitions];
Prohibition and burden of proof
5 (1) A supplier must not commit or engage in a deceptive act or practice in respect of a consumer transaction.
(2) If it is alleged that a supplier committed or engaged in a deceptive act or practice, the burden of proof that the deceptive act or practice was not committed or engaged in is on the supplier.
The phrase most commonly used in these sorts of consumer fraud or deceptive practises matters is if the advertising, claim, representation, etc. constitutes "mere puffery" or whether it is intended or has the effect to deceive in that it relates to a material fact. If the former then the business is fine. If it relates to a material fact and is deceptive then liability may follow.
Puffery refers to an exaggeration or statement that no reasonable person would take as factual. It often occurs in the context of advertsing and promotional testimonials. Puffery may be used as a defence to a warranty or fraud claim (inclduding a deceptive practise claim by a consumer), to assert that the plaintiff shouldn't have relied on the statements in issue. Puffing generally is defined as “exaggerated, vague, or loosely optimistic statements about a company that are deemed so immaterial and unworthy of reliance that they cannot serve as the basis for liability. The difference between a statement of fact and mere puffery rests in the specificity or generality of the claim."
In BC if a supplier is alleged to have committed a deceptive practise , there is provision for the consumer to take court proceedings in Provincial Court (s.171) and also for the the Director of Consumer Protection BC to sue civilly on behalf a consumer or group of consumers similar to a class action (s. 172). The Director may also take over a civil suit and act on behalf a consumer or consumers who have filed suit (s.173) - useful because the consumer does not need to incur legal fees.
A supplier may also be prosecuted which can result in fines of up to $10,000 and up to 12 months in jail if a person and a fine of up to $100,000 if a corporation (s. 190), an order for payment into the Consumer Advancement Fund as an additional penalty (s.191) and the court may also make an order for the supplier to compensate an aggrieved consumer or group of consumers (s.192).