Lawsuits Challenge Subway on ‘Footlong’ Promises

Posted January 28, 2013 in Consumer Law Social Networks by

Segment of a submarine sandwich on a white background


It only took a couple of lawsuits for Subway to figure out the math: If you offer “footlong” sandwiches to customers, they are going to expect – and eventually demand – 12 inches of food.

The restaurant chain has been embarrassed by – and is now being sued because of – Facebook posts showing its popular $5 footlong sub along with rulers or tape measures, which show the sandwiches falling well short of the promised 12 inches.


Expensive Promises

Two New Jersey men subsequently filed a deceptive trade practices suit, according to news reports. The men’s lawyer, Stephen DeNittis, says he will seek class-action status and also plans to file another lawsuit in Philadelphia, according to the Associated Press.

DeNittis, who claims to have measured sandwiches from 17 different Subways, says they all failed to measure up. “The case is about holding companies to deliver what they’ve promised,” he told the AP.

Another man in Chicago has filed suit, claiming his footlong sub was less than 11 inches. He is suing parent company Doctor’s Associates Inc. for a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices,” according to the Chicago Tribune.

The Chicago man is demanding over $5 million in damages. His lawyer, Tom Zimmerman, told the Tribune, “This is no different than if you bought a dozen eggs and they gave you 11 or you bought a dozen doughnuts and they gave you 11.”

Zimmerman is also seeking class-action status and said he would talk to DeNittis about combining their cases in federal court.


Too Little, Too Late?

Subway reportedly balked at the first sign of trouble on Facebook in Australia, where a photo was posted with a measuring tape. The company claimed in a response to the post that the baking process among its thousands of franchises around the country can result in different lengths of bread.

And then it added that “footlong” doesn’t apply to length and used the ol’ “it’s just a trademark” excuse. That didn’t go over very well with consumers, who began posting even more damning evidence. So Subway changed its story.

“We have redoubled our efforts to ensure consistency and correct length in every sandwich we serve,” Subway eventually told the Tribune, after removing the Facebook response in Australia. “Our commitment remains steadfast to ensure that every Subway Footlong sandwich is 12 inches at each location worldwide.”


Power of Social Media

If anyone doubted the power of social media to hold corporations responsible for their promises, this case is powerful evidence of what consumers can do.

“Instead of letting the photo fade into social media oblivion, … Subway Australia responded via Facebook,” points out the LegalZoom blog. “Was Subway Australia really saying that their trademark is no guarantee of consistency and quality?”  

“A registered trademark is used ‘to identify and distinguish the goods/services of one seller or provide from those of others, and to indicate the source of the goods/services,’” says the blog, which then quotes Matthew Yglesias at as saying, “You ought to be able to roll up to a Subway anywhere in the country and know that the brand stands for certain things. They’re saying, essentially, that you can’t.”

Now Subway will have to decide which story to tell in court. 

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