Fast-food chains McDonald’s and Burger King ruled out any incitement of misleading consumer advertising in the case of “fake hamburgers”, in which the stores sold picanha sandwiches without picanha meat, and ribs without the rib cut, respectively.
According to the companies, the indication that the flavors were offered in the products through sauces, and not by the meats of the hamburgers, was clearly indicated in the descriptions of advertising pieces and sales reports.
The information was sent in writing to the Senate Inspection and Control and Defense Commission (CTFC), which made a public hearing on the allegations this Thursday (12). The case was revealed in April by the blog Coma Com Os Olhos.
In the document, Burger King explained that “all products offered in restaurants and on sale online boast the complete menu with all ingredients”. The network presented photos of the Rib Whopper indicating the composition by “a pork hamburger with a taste of ribs”.
The BK highlighted that the debated hamburger, sold since November 24, 2021, is registered with the Ministry of Agriculture with the indication that it has 95% pork meat, with another 5% seasonings and additives. According to the company, the record was never questioned by authorities.
“This information throughout the marketing period was clear and available to the consumer: the flavor was rib meat, not the cut of rib meat”, says the company. “The components of the product have always been within reach of the consumer, through all forms of communication. So much so that, in this sense, the blog ‘Coma Com os Olhos’ had no problem finding the information”, added BK.
“Like most foods in the food sector in general – which qualify their flavors without containing the corresponding raw material, such as strawberry-flavored ice cream without strawberry, cheese crackers without cheese, chicken-flavored instant noodles without chicken, barbecue-flavored potato chips ( that doesn’t exist in nature) – the Rib Whopper® earned its name for its flavor – and there’s nothing wrong with that, as
all the regulatory guidelines that guide the sector were observed, such as consumption rules, advertising regulations and sanitary regulations”, highlighted the company.
A similar claim was used by McDonald’s, which marketed the New McPicanha as a “hamburger with 100% beef” and picanha-flavored mayonnaise. According to the company, the indication that the flavor came from the sauce was exposed in advertising pieces and on the menu available to consumers, which misrepresents misleading advertising.
“From a simple analysis of the communication pieces, it is possible to verify that the Company never indicated that the hamburger would consist of picanha meat. On the contrary. Both the advertising material – which expressly indicates that it is ‘100% beef with picanha-flavored sauce’ – and the marketing of the ‘New McPicanha’ were carried out in good faith, with the intention of transmitting to consumers the taste of the new product line, always emphasizing the composition of the sandwich, and without ever intending to mislead its consumers”, he explained.
“Brazilian consumers are used to purchasing products that are identified by names that refer to the flavor, aroma and experience they offer, and not necessarily to their composition. […] It is an absolutely common practice, which consumers are widely used to.”
After the denunciation of possible misleading advertisements, the Consumer Defense Institute (Procon) of the Federal District determined the suspension of the sale of products and the removal of advertising pieces. The two networks complied with the determination, and BK changed the menu and started selling the sandwich as “Whopper Paleta Suína”, in compliance with legal requirements.
In the Senate, the director general of Procon-DF, Marcelo de Souza do Nascimento, indicated that it was clear that there was misleading advertising in the sale of products. According to him, the practice is characterized by any type of information or advertising communication capable of inducing the consumer to mistake about the nature and properties of the product.
“Advertising is the main way to make us consumers buy a certain product, the martyr used by companies is what attracts the consumer’s attention. But it is necessary to observe the specific regulation for the advertising campaigns, including good faith, transparency and trust”, he explained.
“In this case, it was not a product unfit for consumption. It was the issue of advertising that, in the way it was being advertised, would be misleading the consumer into believing that he was buying a steak sandwich, while there was only steak in the sauce”, he concluded about the McDonald’s product.
The lawyer of the Brazilian Institute of Consumer Protection (Idec), Mariana Gondo, stressed that the Consumer Protection Code (CDC) does not allow the violation of the right to information. In addition, according to her, another decree that deals with basic rules for food requires information on the use of flavorings in a legible way, which would have been disregarded by fast-food companies.
“We’re not talking about tutti-frutti-flavored neon pink candies where consumers are expecting to find tutti-frutti there. We are talking about sandwiches in which there is all the advertising, and the way the products are advertised, a fair expectation of the consumer that those products contain the ingredients that are highlighted as stars”, said the lawyer.
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