Wendy’s: CSPI’s Calorie Menu Misuses Wendy’s Trademark

In the bogus legal claims department, one finds this blub from Consumerist. What’s the deal here? A pretty aggressive consumer group, the Center for Science in the Public Interest, created model menu for Wendy’s that demonstrates how the “restaurant” can display calorie information. It’s pretty clear, and very useful.

Click for full size

Of course, Wendy’s hates this stuff. And their lawyers at Akin Gump are arguing that the sample menu is a misuse of Wendy’s trademark. Sorry Wendy’s and Akin Gump, generally speaking, trademark is a type of consumer protection intended to help consumers distinguish between brands. There’s no brand confusion here!

And check out all the calories in those Starbucks drinks. Ouch!


  1. Raymond

    Hey, that’s good news about Starbucks! Only 10 calories for a double espresso. So I can have 10 double espressos a day, and still only only drink 100 calories, and think of all the work I’ll get done!

  2. I think this is a great model. Why shouldn’t consumers be informed on what they’re buying? If I go to the grocery store most food is labeled with more than just calorie information. I can also see grams of fat, sodium, fiber, vitamins, etc. But I realize putting all of that information on the menu wouldn’t be practical (though putting it on the fast food wrapper would sure be nice).

    But fast food restaurants have mostly (there are some notable exceptions) adopted a nutritional menu online that I can check, even if it’s not as convenient or as publicly accessible as this model. What I’d really love is if regular restaurants put this sort of information on their menus.

  3. It is pretty good. They need to add fat grams. The other issue is carb grams for people with diabetes who are actually trying to mind their diet.

  4. Ha! — A vente coffee of the day is only 15 calories. Woohoo!

  5. @Mark P–the industry is already going ballistic over just providing calorie info! They say it clutters up the menu, and that it becomes very complex when people ask for changes from the default product (i.e. skim rather than whole milk). They’re fighting back hard, but this is a growing trend. Montgomery County, MD is considering requiring calorie info for all restaurants with 10 locations nationwide…

  6. To be fair, most restaurants are already operating under laws that require them to supply detailed health info on demand, so it is out there for customers who care: the problem is getting the info out there and in front of those people who don’t care that much, in the hopes of getting them to care.

    So it’s not quite a black-white issue. The fast food industry doesn’t want people to think about counting calories at the _moment_ they are considering super-sizing: there’s no question at all that it will cut into their bottom line. Health-advocates, on the other hand, want to confront people with this information whether the consumer was thinking about it or not. The reality is that both sides are basically trying to play for control of the minds of consumers at a critical moment above and beyond what those consumers actually want. It’s really sort of bizarre to think about.

    I don’t quite see what Wendy’s has to complain about in particular: their stuff ain’t anywhere near great, but compare them pound to pound to McDs and they are practically health food. They should be shouting this stuff from the hills rather than complaining.

  7. Reality Czech

    The reality is that both sides are basically trying to play for control of the minds of consumers at a critical moment above and beyond what those consumers actually want.

    Wrong (completely); the truth is the opposite.  If consumers don’t care about calories, they are free to ignore them just as they are free to ignore the price when ordering.  Refusing to give the consumer nutritional info at the time of ordering is like a cell company refusing to give price info for features or local calling areas; it is a form of unfair trade practice, where they can give the consumer something the consumer didn’t want without making it known until too late (like a pile of fees that won’t be visible until the bill comes, or a bunch of extra calories that will later appear on the scale or the cholesterol screen).

  8. Those Starbucks numbers are kind of scary, BUT remember you can get skim options, or leave off the whipped cream, etc, the Starbucks website has an extensive nutritional info database where you can get more customized numbers. The menu shown on that link doesn’t show the “Blended Light” options for Frappucinos and some of the other drinks.

  9. Andrew Dodds

    Actually, the problem I always had with Starbuck’s was the whole ‘overpriced and insipid’ thing.. ‘Coffee for people who don’t like the taste of Coffee’ is the slogan, isn’t it?

  10. “Wrong (completely); the truth is the opposite. ”

    No, it’s not. No one is refusing to give consumers the information at the point of sale: they are required by law to supply that information on demand. The problem is that consumers are not demanding it or thinking about it. They aren’t children: if they wanted to pay more attention, they could. If they wanted to ask for the information they could. They don’t.

    You would like them to think about it more than they do. That might well be a noble thing, but it is dishonest to pretend that you, just like the restaurant, are not trying to play and control for the thoughts of others as well. And treating them a but like children. That’s what’s so odd to think about.

  11. The same sort of weirdness is found when people put padlocks on their refrigerators with a laborious process of getting the key. In this case, they seem to be trying to manipulate THEMSELVES.

  12. Whoa, Plunge, no one treats consumers more like children than businesses. By far, the most paternalistic force in the entire debate. Just look at advertising, it’s designed to make you more childlike.

  13. People are generally very good at not thinking about things right in front of their nose if they don’t want to. They are also pretty bad at actively seeking out information even if it’s something that they profess to be interested in. If someone is in a fast food joint to begin with, it’s likely that convenience is a concern. Hiding dietary stats exploits that, discouraging them from acting in their own interest. Presenting those stats does not force them to attend, and most probably won’t, but at least it removes the barrier of inertia.

    If you ask people whether they want the information available by default, most — even those who will totally ignore it — will say they do. Nobody refuses to buy groceries because they have an ingredients list. It’s only ever the manufacturers that want to limit the availability of information. The two positions are not equivalent.

    “If they wanted to pay more attention, they could” is a classic blame-the-consumer argument. (I’m sure several of Chris’s cards apply.) By that token, there should be no need to volunteer any facts at all, nor to exhibit any kind of truth in advertising, etc, etc. If people really wanted to know, they could find out. If they don’t, businesses should be at liberty to fuck them over every which way, right?

  14. Reality Czech

    I have asked fast-food outlets for nutritional information before.  I have been told I cannot get it in the store; I have to go on-line or call their toll-free number.  This gives me the choice of wasting a huge amount of time (perhaps enough to go to a sit-down restaurant instead) or making decisions in the dark.  In other words, these businesses go out of their way to make it impractical to order the best thing for my health.

    I find Plunge’s position despicable.

  15. “Whoa, Plunge, no one treats consumers more like children than businesses. By far, the most paternalistic force in the entire debate.”

    So, wait, what does this have to do with anything I said again? Of course they are manipulative: they are after trying to make people think about the gooey yummy food and hopefuly so strongly that they don’t consider anything else. They wouldn’t even put the PRICE up there if they weren’t forced to (a lot of them in fact do play fast and loose with how they represent prices to make it hard to easily calculate what your final total will be)

    But that doesn’t mean that consumers really ARE children and that only you adults know what’s best for them. Consumers really DO by and large choose not to pursue or think about or ask for health information (most in the states I’ve been have been required to put up posters with full health information: I’ve seen virtually no one ever pay any attention to them). And of COURSE fast food restaurants exploit that.

    None of that changes the fact that pushing to have health information displayed up the the prices is a form of manipulation as well. I’m sure there are all sorts of pet concerns that people would like up there to advertise consumers to think about. How about carbon costs of production per item? How about comparisons to other restaurants in the area?

    That’s what makes the issue so interesting: you have all sorts of competing interests outside the consumers themselves all vying for mindspace at a particular moment. The restaurants are used to controlling this near absolutely, and now other people are getting into the act. That’s fascinating stuff. It’s similar to the counter-intuitive result where fast food chains have found that when they are forced to comply with health standards and, say, lower the fat in their fries, they actually do better if they DON’T high-profile advertise that fact to customers (perhaps because “lower fat” still implies “doesn’t taste as good” to consumers, even if the taste is exactly the same).

    Apparently though, pointing that out is “despicable.” No no: there are white knights and vile goblins, and no interesting issues on human nature to be noted here. The restaurants are evil bad guys, and thus, nothing else is worth thinking about.

    “People are generally very good at not thinking about things right in front of their nose if they don’t want to.”

    Well, yes, that’s EXACTLY the interesting point. Why not? Are you sure that it’s just because they “aren’t very good” at thinking about their own self-interests unless someone manipulates them one way or another? Is it as simple as that?

    “By that token, there should be no need to volunteer any facts at all, nor to exhibit any kind of truth in advertising, etc, etc…. If they don’t, businesses should be at liberty to fuck them over every which way, right?”

    This reducio is pretty dishonest. First of all, I haven’t argued that this should or shouldn’t be done. Second of all, there are no tokens: it IS perfectly reasonable that restaurants should be required to provide easily accessible health information at point of sale: full transparency should be a basic doctrine of consumer law. But the issue I’m interested in is why, even when there is that transparency, it gets used so little: why so few people do look at health information and what to do about it (in this case, the strategy is “here, the law says you should think about this too, in addition to the item and the price”): why are people making those choices or not making them?

    And what happens when consumers basically just mentally edit out and/or ignore the calorie information and STILL eat “too much” fast food? Should the cash register also give them a final total of their calorie count, and then print out a waiver for them to sign confirming that they understand how it will affect their body (the former actually seems like a pretty cool idea, actually)? At what point does the consumer bear some responsibility to think about what they are eating?

  16. Regarding consumer information being available on demand: That kinda only works if a) the law is actually obeyed and b) the consumers actually know about it. There was some flick made (Supersize me, I think) that tested precisely that. The results were disappointing, but entirely unsurprising.

    – JS

  17. Look, I’m a foodie and I really don’t like the CSPI — they use a lot of the same obnoxious, attention-whore tactics as PeTA (though not as reprehensibly), and I think it safe to say that the people who pull the strings there are people who don’t really like to eat very much. That said, the chains need to quit whining — they owe it to their customers to provide nutritional information (which you used to be able to get in a pamphelet at McDonalds — don’t know if you still can). Informed consent is almost as important in food as it is in sex (there’s a reason we have anti-food-adulteration laws and the FDA), and these chains need to suck up and deal.

    (I’m not sure it would be a bad idea for some independent restaurants either, but most such places really can’t afford to have the necessary nutritional analyses done, so I’d not mind seeing them get a pass based on their financial situation…)

  18. It’s not hard to get nutritional analyses done, and in fact there are almost certainly grants and non-profits out there that will eat most of the cost. That shouldn’t be an excuse for most places.

    It probably also goes without saying that if chains aren’t following the law by having information on demand, then maybe enforcing that law is the next sensible step. But let’s be honest: almost no one believes that this will help, because we all know that consumers almost never look at or for this information. Of course, most people that eat fast food period are probably not thinking about their health in the first place.

  19. Labeling calories is a good step. I would also like to see clear, easy to read labels about common allergens. Not necessarily on the boards, but at least in an easily accessible pamphlet that is not hidden some place where the manager can’t find it.

    As someone who frequently has to ask for ingredients at restaurants, I can tell you that it’s often such a hassle that I do not go back. I’ve never tried asking for calorie info. Frankly, sometimes I’m lucky if there’s a single item on the menu that I can eat, so calories are rather irrelevant at that point.

  20. I found myself in a McDonald’s recently (first time in months) and I was pleasantly (or unpleasantly) surprised to realise that have added nutritional information to their food packaging – so while you may not have the information readily available when ordering, it was pretty easy to find things out once you had them. The packages also had a graphic that showed the amount of fat in the item, and for comparison, 1/3 of your recommended daily intake. That said, I’d love to see boards like that (not going to happen any time soon in Oklahoma though).

  21. plunge: There’s a substantive difference between “very good at not” and “not very good at”. My point is that the presence of the info is not coercive, in that those who don’t care won’t care, while its absence effectively is, since those who do care will in most cases not receive it.

    I agree that this argument could be applied to any and all information down to the absurdly trivial, making it a matter of deliberate policy which will be informed by the ideological/moralistic/paternalistic motivations of those arguing. But when is that ever not the case?

  22. “My point is that the presence of the info is not coercive, in that those who don’t care won’t care, while its absence effectively is, since those who do care will in most cases not receive it.”

    It’s coercive to the fast food restaurants marketing ploys, which I suppose counts for nothing. And those who do care are most easily served by having the information available on request (as I agree it should be). I’m still not saying that it’s not something worth doing, but by and large, I’d like at least SOME recognition that it’s the consumers here who are the ones not really paying attention, and both sides want to manipulate them to care about what they want them to care about at a critical moment.

Leave a Reply

Your email address will not be published. Required fields are marked *