Commentary: Aron Solomon – Why the Feds Care So Much About Your McFlurry


I love a McFlurry as much as the next person.

But why the Federal Trade Commission worries about whether I can get some sort of McFlurry is beyond me. Yet they are, according to a recent Wall Street Journal report.

The problem that causes one of our favorite snacks to get cold is why the machines always seem to be broken. As early as 2017, McFlurryHeads complained on social media about the state of the machines. Other than the pretty obvious variable of a presidential administration change, why does the FTC care now?

Because this federal agency is responsible for protecting us consumers from unfair business practices and even fraud. If McDonald’s franchisees are aware that soft serve ice cream machines or machines that mix McFlurry are performing poorly and below the expected industry standard, there may actually be an FTC issue here.

In this case, McDonald’s would knowingly lure us into their restaurants, well aware that many of us would come into a McDonald’s franchise, either expressly for a McFlurry or to include one in our meal. McDonald’s would also realize, given the quality of data capture and tracking and our habits in their stores, that many people who wanted a McFlurry wouldn’t just leave, but instead buy other things. This is where deception and maybe even fraud becomes relevant.

As the WSJ reported, the path from urban myth to the FTC problem was certainly no secret to McDonald’s or its franchisees, who knew that ice cream machines were not only unreliable, they were also difficult to operate. to fix. In 2019, a private company, Kytch, developed technology to help McDonald’s franchise owners diagnose actual problems with the machines and repair the machines themselves, saving McFlurry a lot of downtime. Of course, seeking to find defeat where victory was at hand, McDonald’s told its franchisees they couldn’t use Kitch technology. What prompted the FTC to ultimately get involved was Kytch’s lawsuit against McDonald’s.

Tim George, an attorney from Erie, PA, said: “As much as we can be attached to our McFlurry or anything a fast food restaurant offers us, the real problem here is when false expectations are knowingly created. by the restaurant. So offering something on the menu that you know will not be able to be served on a regular basis due to the known unreliability of a machine needed to serve it could be considered a deceptive business practice.

But where does the line between McDonald’s simply having unreliable McFlurry technology and deceiving consumers?


It remains to be seen, but it seems clear that McDonald’s has the right thing to do, whether or not they are able, on any given day, to sell the McFlurry that so many people dream of. And while a mixed ice cream in a cup isn’t a critical situation for most of us most of the time (although it may seem like it is), when companies are allowed to get away with it. deceptive business practices and frauds, they tend to develop and escalate.

So the next McFlurrygate could be something that actually affects our health and safety rather than our cravings.

Aron Solomon is Chief Strategy Officer for Esquire Digital and Editor-in-Chief of Today’s Esquire. He taught entrepreneurship at McGill University and the University of Pennsylvania and was the founder of LegalX, the world’s first legal technology accelerator. He wrote this for InsideSources.com.

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