As consumers around the world have begun posting images online of their Subway “footlong” sandwiches with rulers showing that the restaurant’s offerings are actually 11 or 11.5 inches in length, several have taken their claims to court. Buren v. Doctor’s Assocs., Inc., No. 13 498 (N.D. Ill., filed January 22, 2013); Pendrak v. Subway Sandwich Shops, Inc., No. ___ (N.J. Super. Ct., filed January 22, 2013).

Plaintiff Nguyen Buren filed his lawsuit in a federal court in Chicago, claiming
that his sandwich was less than 11 inches long and alleging a “pattern
of fraudulent, deceptive and otherwise improper advertising, sales and
marketing practices.” New Jersey residents John Farley and Charles Pendrak
allege in state court, “Despite the repeated use of uniform language by
Subway stating that this sandwich is a ‘footlong,’ the product in question is
not, in fact, a foot long. Rather this product consistently measures significantly
less than 12 inches in length.” Both cases seek class certification.

The attorney representing the New Jersey plaintiffs said, “Subway is profiting hundred[s] of thousands and potentially millions of dollars at consumers’ expense through mass uniform widespread misrepresentation about the size of its ‘Footlong.’ It is important that large companies like Subway promote and advertise their products accurately and deliver what they promise to consumers.” According to a news source, the company issued a statement indicating that it has “redoubled” efforts “to ensure consistency and correct length in every sandwich we serve,” but that it otherwise produces 12-inch sandwiches in its shops around the world. Subway has reportedly sued other food chains to protect the “footlong” mark, which was actually rejected by the U.S. Patent and Trademark Office as descriptive and generic. See Shabel & Denittis, P.C. News Release, January 22, 2013; Law360, January 23, 2013; Chicago Tribune, January 24, 2013.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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