I. The Statutory Framework

In 1975, Congress passed the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act, the first federal statute to address the law of consumer product warranties. The Act, codified at 15 U.S.C. § 2301 et seq., was designed to protect consumers from deceptive and inadequate warranty practices by imposing mandatory disclosure requirements on any supplier who chose to offer a written warranty on a consumer product.¹

The Act’s definitional architecture is broad by design. A “consumer product” means “any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes.”² A “written warranty” means “any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time.”³

Congress did not restrict these definitions to warranties printed on cardboard inserts inside electronics boxes. It did not require that the warrantor intend to create a warranty. It did not exempt baked goods. The test is functional: if a consumer product contains a written promise of future performance made in connection with the sale of that product, the Magnuson-Moss Act applies. The fortune cookie has been meeting this test since approximately 1914.

II. The Consumer Product

A fortune cookie is a sweet, folded wafer of flour, sugar, vanilla, and sesame oil, approximately three inches in diameter when flat and one inch tall when folded, produced through industrial baking and mechanical insertion of a paper slip bearing a textual message. It is tangible. It is personal property. It is distributed in commerce. It is normally used for personal and household purposes, specifically the consumption of a dessert and the reading of a prophetic statement.

The fortune cookie industry produces approximately three billion units annually, with the overwhelming majority consumed within the United States.⁴ Wonton Food Inc., headquartered in Long Island City, Queens, is the largest single manufacturer, operating facilities in New York, Tennessee, and Texas, and producing approximately five and a half million cookies per day.⁵ The cookies are distributed to an estimated 40,000 or more Chinese restaurants nationwide,⁶ where they are provided to consumers at the conclusion of a meal, typically without separate charge. They are, under any reading of 15 U.S.C. § 2301(1), consumer products.

The fortune cookie is not Chinese. The Smithsonian Institution’s National Museum of American History traces its origin to Japanese-American confectioners in early twentieth-century California, specifically Makoto Hagiwara of the Japanese Tea Garden in San Francisco’s Golden Gate Park, who served a version of the Japanese tsujiura senbei to visitors as early as 1914.⁷ The cookie migrated from Japanese-American to Chinese-American bakeries during the 1940s, following the internment of Japanese Americans during World War II. The fortune cookie machine was invented by Edward Louie of the Lotus Fortune Cookie Company in the late 1960s, enabling mass production. The product is, in every meaningful sense, American. It is regulated by American law. It is subject to the Magnuson-Moss Warranty Act. It contains a warranty.

III. The Written Warranty

The slip of paper inside a fortune cookie is a written document. It is distributed in connection with the sale of a consumer product. It contains an affirmation of fact or a promise relating to future performance. It is, under 15 U.S.C. § 2301(6)(A), a written warranty.

Consider the inventory. Wonton Food Inc. maintains a database of approximately 15,000 unique fortune texts, written for decades by the company’s former chief financial officer Donald Lau and, since 2017, by its information technology supervisor James Wong.⁸ These texts are not disclaimers. They are not expressions of opinion. They are declarative statements of future performance:

“You will find great success in whatever you do.”

“A pleasant surprise is in store for you.”

“Your hard work will pay off.”

“Good news will come to you from far away.”

“All the preparation you’ve done will finally be paying off.”

Each of these is a written affirmation that the consumer’s life will “meet a specified level of performance.” The word “will” is not conditional. “You will find great success” is not “you may find great success.” It is not “under certain conditions, success is possible.” It is an unqualified written promise of future performance, issued by a supplier, received by a consumer, in connection with the sale of a consumer product. Under the Magnuson-Moss Act, the only question is whether this promise relates to “the nature of the material or workmanship.” The fortune cookie’s entire workmanship—its sole purpose as an engineered consumer product—is the delivery of that promise. Remove the fortune and you have a stale wafer. The workmanship is the warranty.

IV. The Designation Failure

Section 103 of the Act, codified at 15 U.S.C. § 2303, provides that written warranties on consumer products actually costing the consumer more than ten dollars, excluding tax, must be designated either “Full (statement of duration) Warranty” or “Limited Warranty.” The FTC’s implementing regulation at 16 CFR § 700.6 specifies that these are “the exclusive designations permitted under the Act.” The designation must “appear clearly and conspicuously as a caption, or prominent title, clearly separated from the text of the warranty.”⁹

Not a single fortune cookie in the history of the American fortune cookie industry has borne the designation “Full Warranty” or “Limited Warranty.” The slips do not contain a warranty duration. They do not specify whether the warrantor’s obligations transfer to subsequent owners of the fortune. They do not state whether the fortune constitutes a Full Warranty, under which the warrantor must remedy defects in performance within a reasonable time and without charge, or a Limited Warranty, under which the warrantor’s obligations are more circumscribed.

The ten-dollar threshold warrants examination. A fortune cookie, when provided as part of a restaurant meal, is bundled with food service that routinely exceeds ten dollars. The Act applies to the “consumer product” as purchased. A Chinese dinner for two in a major metropolitan area averages between thirty and fifty dollars, and the fortune cookie is part of that transaction—an included component of the meal experience, as integral to the commercial exchange as the check presenter or the hot towel. The warranty is therefore distributed in connection with a consumer product costing well above the statutory threshold.

V. The Pre-Sale Availability Catastrophe

The FTC’s Pre-Sale Availability Rule, codified at 16 CFR Part 702, requires that the text of any written warranty on a consumer product costing more than fifteen dollars be “readily available for examination by the prospective buyer” prior to purchase.¹⁰ The seller must accomplish this by either displaying the warranty document “in close proximity to the warranted product” or furnishing it upon request prior to sale.

The fortune cookie violates this rule with an elegance that borders on engineering. The warranty document is not displayed in close proximity to the product. It is sealed inside the product. The cookie is a hermetically closed edible container whose structural integrity must be destroyed to access the warranty terms. The consumer cannot read the warranty without breaking the cookie. The consumer cannot break the cookie without completing the purchase, since the cookie is not delivered until the meal has been consumed and the check has been presented. The warranty is, by physical design, inaccessible prior to sale.

No Chinese restaurant in the United States posts the text of its fortune cookie warranties in a prominent location in the dining area. No restaurant provides fortune cookie warranty terms upon request. No restaurant places signs “reasonably calculated to elicit the prospective buyer’s attention” advising diners that warranty information is available. No warrantor—neither Wonton Food Inc. nor any of the smaller fortune cookie manufacturers, nor any of the estimated 40,000 restaurant sellers—has provided sellers with warranty materials necessary to comply with the Pre-Sale Availability Rule.

The FTC addressed this concern obliquely in a 2013 compliance warning letter to consumer electronics retailers, noting that “warranty information was not fully disclosed in close conjunction with the warranted product.”¹¹ The letter was directed at websites that buried warranty terms behind insufficient hyperlinks. The fortune cookie industry has surpassed this violation by encasing the warranty inside a baked good.

VI. The Nine Missing Disclosures

Under 16 CFR § 701.3, any warrantor warranting a consumer product costing more than fifteen dollars must “clearly and conspicuously disclose in a single document in simple and readily understood language” nine specific items of information.¹² A fortune cookie slip provides none of them.

Item (1): the identity of the parties to whom the warranty is extended. A fortune slip does not identify its recipient. It does not specify whether the warranty applies to the original purchaser, to anyone who reads the fortune, or to the person who happens to crack the cookie. If two diners share a plate of fortune cookies, the warranty assignment is ambiguous.

Item (2): a clear description of the products, parts, characteristics, or components covered by the warranty. “You will find great success” does not specify which domain of human endeavor is covered. Is it professional success? Financial? Romantic? The warranty covers everything and therefore, under the Act’s disclosure requirements, specifies nothing.

Item (3): a statement of what the warrantor will do in the event of a defect, malfunction, or failure to conform with the written warranty. No fortune cookie slip has ever specified what Wonton Food Inc. will do if the consumer does not, in fact, find great success. Repair? Replacement? Refund? A new fortune? The remedial framework is entirely absent.

Item (4): the warranty duration. “A pleasant surprise is in store for you” does not specify when. Today? This fiscal quarter? Before the heat death of the universe? The warranty has no stated commencement date and no expiration. Under the Act, an unstated duration creates a perpetual warranty obligation.

Item (5): a step-by-step explanation of the procedure the consumer should follow to obtain warranty performance, including the name and mailing address of the warrantor. Fortune slips do not identify the warrantor. They do not provide a mailing address, a telephone number, or an email. The consumer who fails to find great success has no one to call.

Items (6) through (9), covering informal dispute settlement mechanisms, limitations on implied warranties, exclusions of consequential damages, and the statement that “this warranty gives you specific legal rights,” are likewise absent from every fortune cookie slip ever printed.

VII. The Remedial Paradox

Under Section 104 of the Act, 15 U.S.C. § 2304, a “Full Warranty” requires the warrantor to remedy any defect, malfunction, or failure to conform with the warranty within a reasonable time and without charge to the consumer. If the warrantor cannot remedy the defect after a reasonable number of attempts, the consumer may elect either a replacement or a refund.¹³

The fortune cookie industry has never remedied a single warranty claim. When a fortune promises “Your hard work will pay off” and the consumer’s hard work does not, in fact, pay off, no mechanism exists for the consumer to return to the restaurant, present the fortune slip, and demand corrective action. The warrantor—whoever it may be, since the slip does not identify one—does not offer repair of the consumer’s career trajectory. It does not provide a replacement fortune. It does not issue a refund. The warranty, once breached, simply remains breached. The consumer is left holding a piece of paper and an empty cookie shell, with no recourse under a statute that was designed specifically to prevent this outcome.

Whether the fortune cookie warranty is “Full” or “Limited” is unknowable precisely because the industry has never designated it as either. The Act provides no default classification. The warranty exists in a regulatory void—simultaneously subject to the Act’s requirements and compliant with none of them.

VIII. The Lucky Numbers Problem

Compounding the warranty violation is the industry’s practice of printing numerical sequences on fortune slips, labeled “Lucky Numbers.” These numbers are widely used by consumers as lottery selections.

On March 30, 2005, one hundred and ten Powerball players won second-tier prizes—eighty-nine winning $100,000 and twenty-one winning $500,000 through the Power Play multiplier—using the numbers 22, 28, 32, 33, 39, and 40, all printed on fortune cookie slips manufactured by Wonton Food Inc. Lottery officials initially suspected fraud. The Multi-State Lottery Association launched a formal investigation. “Something was wrong; it was out of the realm of possibility,” said Charles Strutt, then-executive director of the MUSL. “So we suspected a great system error or a fraud.”¹⁴

It was neither. The investigation determined that thousands of fortune cookies distributed across twenty-nine states had contained identical “lucky number” sequences, and 110 consumers had used them to purchase Powerball tickets. The total payout exceeded $19 million. Had the final number been 42 instead of 40, the 110 winners would have split a $25 million jackpot.

The label “Lucky Numbers” is itself a written affirmation of performance. The word “lucky” is not a disclaimer. It is not a statement of mathematical probability. It is a written promise that these particular numbers possess a quality—luck—that will produce a specified level of performance in contexts where numerical selection determines outcomes. When 110 consumers relied on this written affirmation and collectively won $19 million, the warranty performed. When the uncounted millions of other consumers who played the same numbers in other drawings did not win, the warranty failed. No warranty claim was filed. No remedial action was taken. The FTC did not intervene.

IX. The Scale of Noncompliance

Three billion fortune cookies are produced annually.⁴ Each one contains a written warranty that has not been designated “Full” or “Limited.” Each one violates the Pre-Sale Availability Rule. Each one fails to disclose nine mandatory warranty terms. Each one is distributed in connection with the sale of a consumer product.

At three billion cookies per year, the instantaneous violation rate is approximately 9,500 per second. Over the roughly sixty years since the fortune cookie machine was invented in the late 1960s, the cumulative number of undesignated written warranties distributed in American commerce exceeds 100 billion. Over the fifty-one years since the Magnuson-Moss Act took effect on July 4, 1975, the number of warranties distributed in knowing noncompliance with federal designation, disclosure, and pre-sale availability requirements exceeds 80 billion.

Wonton Food Inc. alone produces approximately two billion cookies per year from its three facilities. The company employs more than 400 workers whose labor is, in significant part, the production and insertion of written warranty documents into consumer products. It is, by output volume, the largest distributor of undesignated written warranties in the United States. The FTC has not requested a meeting.

Under Section 110(d) of the Act, 15 U.S.C. § 2310(d)(1), consumers damaged by a warrantor’s failure to comply with the Act may bring a civil action for damages and equitable relief in any court of competent jurisdiction. Under § 2310(d)(3)(C), where the number of named plaintiffs exceeds one hundred, a class action may be brought in federal district court. The 110 Powerball winners of 2005—who relied on written “Lucky Number” affirmations from a single warrantor and whose collective reliance produced a documented $19 million in outcomes—would have met this threshold by ten. No suit was filed.

X. The FTC Act and Deceptive Practices

Independent of the Magnuson-Moss Act, the fortune cookie industry operates in potential violation of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), which declares unlawful “unfair or deceptive acts or practices in or affecting commerce.”¹⁵ Under the FTC’s Deception Policy Statement, a representation is deceptive if it is likely to mislead consumers acting reasonably, and the representation is material to the consumer’s purchasing decision.

“You will find great success in whatever you do” is a material representation about the consumer’s future. It is written. It is distributed by a supplier. It is received by a consumer who has just completed a commercial transaction. It is, by the FTC’s own standards, either true or deceptive. The fortune cookie industry cannot have it both ways: either the fortunes are written promises of performance subject to the Magnuson-Moss Act’s warranty regime, or they are deceptive representations subject to Section 5 enforcement. There is no third category in which a written statement distributed in commerce means nothing at all.

XI. The Manufacturer’s Defense

The anticipated defense—that fortune cookie messages are understood by consumers to be entertainment rather than warranties—fails under the Act’s own terms. The determination of whether a written statement constitutes a “written warranty” under 15 U.S.C. § 2301(6) depends on whether the statement satisfies the statutory elements—a written affirmation or promise, made in connection with a sale, relating to performance—not on the supplier’s subjective characterization of the statement’s purpose. The Act does not exempt statements that the supplier considers humorous, aspirational, or traditional. It exempts nothing that meets the definition.¹⁶

Section 700.5 provides a narrow exception for “expressions of general policy concerning customer satisfaction which are not subject to any specific limitation.”¹⁷ These need not be designated as Full or Limited. But this exception applies only to “general policies,” not to specific written promises about specific future events. “You will find great success in whatever you do” is not a general satisfaction policy. It is a specific promise to a specific consumer about a specific outcome. “A pleasant surprise is in store for you” specifies both the nature of the event (pleasant, surprising) and its certainty (it is “in store”—present tense, already determined). These are the most specific warranties in American commerce. They promise everything. They exclude nothing. And they are backed by the full weight of an industry that has never once honored a claim.

XII. Conclusion

The evidence admits no ambiguity. Under 15 U.S.C. § 2301(6), a “written warranty” is any written affirmation of fact or written promise made in connection with the sale of a consumer product which affirms or promises that such product will meet a specified level of performance. Fortune cookies are consumer products. The slips inside them are written promises of performance. They are distributed in connection with the sale of those products to consumers. They meet every element of the statutory definition.

Under 15 U.S.C. § 2303, these warranties must be designated “Full” or “Limited.” None have been. Under 16 CFR Part 702, their terms must be available to the consumer prior to purchase. They are physically sealed inside the product. Under 16 CFR § 701.3, they must disclose nine specific items of information. They disclose none. Under 15 U.S.C. § 2304, the warrantor must remedy defects in performance. No warrantor has remedied a single unfulfilled fortune in the 112-year history of the American fortune cookie.

The FTC regulates a Samsung television’s one-year limited warranty with more procedural rigor than it applies to an industry that distributes three billion written promises of life-altering performance annually, sealed inside edible packaging, to consumers who cannot read the terms until after the transaction is complete, issued by a warrantor whose identity is nowhere disclosed, with no duration, no coverage description, no remedial procedure, and no designation of any kind.

Three billion undesignated written warranties per year. Eighty billion since the Act took effect. One hundred and ten documented instances of consumers relying on the warranty’s “Lucky Numbers” affirmation to win $19 million in a single drawing. Zero FTC enforcement actions. Zero compliance letters. Zero designations. Zero pre-sale disclosures. Zero remedies honored.

The fortune cookie promised you great success. It did not mention it would be unwarranted.

Ergo.