DennisBeaverNovember 27, 2009 (Original publish date) • By Dennis Beaver

In late October the Black Angus Restaurants chain — which came out of bankruptcy in March of this year — began a major campaign to attract customers. Advertising inserts were placed in weekend editions of newspapers all over the Western United States.

Featured was the “Campfire Feast Dinner for Two, $38.00,” and “Top Sirloin Steak, Lobster & Shrimp for $15.99.” While the “Feast” lists the types of entrees — various steaks, chicken and fish — it does not give a hint as to the portion size or weight. May a guest select a 3/4 pound cut of prime rib, the full pound, or does Black Angus only give you the smallest portions?

There is no way of knowing by reading the ad, “but legally, customers have a right to any portion size, as long as you select what’s featured in the ad, or coupon,” I was told by Kathryn De Contreras, supervising special investigator with the California Department of Food and Agriculture.

A customer used to ordering large portions would quickly be disappointed, once seated and handed the menu, to only then discover that Black Angus gives you the smallest choices available with this advertised special. In fact, the menu is an exact duplicate of the ad, but with the portion (ounce) sizes listed.

So, the only way to learn what you’re going to get by ordering the special is by (1) going in to the restaurant, or (2) looking at their Web site, as it, too, reveals the details. So, why don’t they come right out and say it like it is in the ad? How could that information appear in the menu, on the Web site, but not in the newspaper ad? Was it left out in error, or was there some other reason?

Either way, it leaves the restaurant wide open to precisely what we reported on last week — customers who feel disappointed and tricked into going into the restaurant. But what we have here has the potential to go well beyond disappointment, in my legal opinion as a former consumer fraud deputy district attorney.

In the best tradition of journalists hungry for a story (or just plain hungry) along with an attorney colleague, I put the Black Angus Campfire Feast ad to the test on Oct. 23. Would they let us order any size steak listed in the ad, or would we be refused? Our waitress agreed that the ad placed no ounce limit on the entrees, but her boss, Assistant Manager Javier became one flustered guy!

“No, you can’t order a larger steak than shown on the menu” he told us.

“But, gee, Javier, want to show me those ounces in the newspaper coupon? I don’t see them there, and that’s why we came here, for a really big steak!”

We contented ourselves with one of their excellent burger plates, well worth the price. Black Angus may have not known how to write a good ad, but they do have really good food. And I’ll go there again. (If they let me in.)

Investigator De Contreras offered these further observations: “When a food industry advertisement does not state weight, portion or package size, customers are free to order/purchase whatever size desired, just as long as it’s the same item in the ad. But if the business only intends to provide, as in this case, the smallest size on their menu, that must be revealed in the ad. If not, it could be seen as an unfair business practice.

“Of course, there can be printing errors or similar mistakes, which can be generally fixed by appropriate signs or corrective ads. But what seems strange with this newspaper ad is the fact that their Web site and menus are virtually identical in appearance to the advertising insert and they list weights. But the ad does not.”

When an advertisement misleads the public it can give that business a competitive “edge” over another business which respects the law and advertises honestly. When this happens, it can be the basis of a suit for a violation of California’s False Advertising and Unfair Business Practices Acts.

Case in point: Claim Jumper Restaurants newspaper insert, “Steak and Lobster Special — 7 oz. USDA Prime Top Sirloin aged 28 to 35 days with a Premium 8 oz. Lobster Tail, $29.95.” However, The Black Angus $15.99 Steak, Lobster and Shrimp Special gives no hint as to portion weight. It does not reveal if you’ll need a U-Haul truck to take the leftovers home, or a magnifying glass to find what’s going to be on your plate.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.