Is a flat delivery fee still a flat fee if the food also costs more?

Though more prevalent than ever, delivery is still an extra step in the traditional restaurant experience, and someone is going to have to pay for that additional service. But how upfront does a restaurant have to be with their customers about the way delivery costs are covered? That question is at the heart of a new lawsuit filed against Chick-fil-A.

Two New York City area plaintiffs allege that, beginning in early 2020, despite advertising flat delivery fees on orders, the chicken chain also had higher menu prices for delivery, which the plaintiffs claim is “deceptive and untruthful,” according a federal court filing for the proposed class action suit.

“To appeal to consumers in a crowded food delivery marketplace, Chick-fil-A has promised its customers low-price delivery in its mobile application and on its website, usually in the amount of $2.99 or $3.99,” the filing states. “These representations, however, are false, because that is not the true cost of having food delivered by Chick-fil-A… Chick-fil-A secretly marks up food prices for delivery orders by a hefty 25 to 30 percent. In other words, the identical order of a 30-count chicken nuggets costs approximately $5 to $6 more when ordered for delivery than when ordered via the same mobile app for pickup, or when ordered in-store.”

The lawsuit concludes that this “secret” additional markup on delivery items is essentially a “hidden delivery fee” that “deceives consumers into making online food purchases they otherwise would not make” since Chick-fil-A “misrepresent[s] the actual costs of the delivery service.”

Restaurants setting different pricing for delivery isn’t uncommon; however, the lawsuit suggests these differences should be disclosed. The filing points to other services: “Although Instacart, the grocery delivery service, does mark-up item charges for delivery orders made through its app, it provides an express warning to consumers that the item prices listed on its app are ‘higher than in-store prices,'” the suit stated. “Instacart’s clear disclaimer is made visible to consumers before they place their orders and allows consumers to understand that they are paying a higher price for utilizing the delivery service.”

The lawsuit is seeking an order for Chick-fil-A to end this alleged unlawful practice as well as financial compensation.

We’ve reached out to Chick-fil-A for comment, but haven’t heard back as of publication.