Subway… More Meat? Right!

This is something that I have been wanting to write for some time now and this past weekend, while I was watching football, I was reminded again by the ever present Subway commercials that their sandwiches are not at all what they seem to be, at least to me and my family.  Pictured here is a sub as it is shown on the Subway website.  This sandwich is not at all unlike the sandwiches that are shown in the Subway commercials.  If you are a football fan I am sure that you have see these ads, typically proclaiming that Subway subs have “more meat.”  Even if you are not a football fan I suspect that you have seen these commercials at one point in time or another.  Jared, the guy who lost hundreds of pounds eating only Subway subs, has become something of a fixture on our TVs.

Who would not want to buy a sub or sandwich that looks like the subs that are shown on the Subway website, or those that are shown on their popular TV commercials?  But who among us has ever received a sub or sandwich from Subway that looks anything like those that they promote in their advertising?  I know that I have never once seen a sub like those.  Simply said, based on my experiences it is my belief that Subway advertising is laughably misleading.

According to US federal law, namely Section 1125(a)(1)(B) of Title 35, it is unlawful to engage in false adversiting.  Unlawful adversiting on the federal level is a variety of a trademark violation.  The law specifically states:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false or misleading description of fact, or false or misleading representation of fact, which . . . misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

As you can see, this section of law prevents the misrepresentation of goods or services offered.  Other sections of Title 35 more directly relate to trademark infringement, counterfeiting and the creation of a likelihood of confusion in the minds of consumers.  All are trademark concerns because the trademark laws in the US are intended to protect consumers by providing consumers a meaningful way to differentiate between similar products and services.

If someone were to want to bring an action against Subway for advertising that their sandwiches are full o meat when in reality they have very little meat, the lawsuit would be brought by a competitor who would allege damages due to the fact that the false adversiting is tricking consumers into buying from Subway rather than buying from them.

To prevail in a false advertising suit alleging a violation of the abovementioned statute, a plaintiff must prove that: (1) the defendant’s ads were false or misleading; (2) actually or likely deceptive; (3) material in their effects on buying decisions; (4) connected with interstate commerce; and (5) actually or likely injurious to the plaintiff.

Based on my Subway experiences, it seems to me that Subway’s advertising is clearly false and misleading.  How or why they are continually able to advertise in this false and misleading way is beyond me.  Perhaps it is just because we as consumers have become so numb to advertising that we no longer believe any advertising, I don’t know.  What I do know, however, is that every time a Subway commercial comes on the TV we all laugh around my house.  Subway subs are tasty, but look nothing like they do in their advertising.