In-N-Out Suit Forces Smashburger to Change Some “Double The Beef” Ads

A California federal court has sided with In-N-Out Burgers in a lawsuit challenging whether Smashburger’s Triple Double hamburger has “double the beef.” In-N-Out Burgers v. Smashburger IP Holder LLC, No. 17-1474 (C.D. Cal., entered February 6, 2019). Smashburger’s Triple Double, advertised as “double the beef,” contains the same amount of beef as Smashburger’s classic burger—five ounces—but the beef is split into two patties instead of one. The complaint alleged that Smashburger’s “deceptive” advertising was likely to harm In-N-Out if consumers chose Smashburger’s products over In-N-Out’s based on inaccurate marketing.

“[T]he claim that the Triple Double burger contains ‘double the beef’ as compared to the Classic Smash burger is literally false on its face,” the court found. “The phrase ‘double the beef in every bite’ unambiguously refers to the amount of beef in the burger, rather than the number of layers of beef.” The court dismissed Smashburger’s argument that the “double the beef” tagline references a comparison to competitors’ burgers, citing the tagline referencing Smashburger’s own product, “Classic Smash™ Beef build with triple the cheese & double the beef in every bite.”

The court declined to find literal falsity for “double the beef” claims made without a specific reference to the Classic Smash, but it declared summary judgment for In-N-Out on “the literal falsity, deceptiveness, and materiality elements of In-N-Out’s false advertising claim for Smashburger’s use of the phrase ‘Classic Smash™ Beef build with triple the cheese & double the beef in every bite.'”