Court won’t dismiss Burger King’s Whopper ad lawsuit

Update:

• A Florida federal judge denied Burger King’s motion to dismiss a class action lawsuit alleging its ads misrepresent the size and toppings of its iconic Whopper hamburger, stating that the claims plausibly allege the ads go beyond typical advertising exaggeration.
• The plaintiffs argue Burger King’s ads overstate the patty size by about 35% and falsely imply an increase in burger size since 2017, although the actual patty size has not changed.
• Burger King attempted to have the case dismissed and sought sanctions, arguing that the ad images were professionally styled and not meant to reflect actual food, but both motions were denied.
• U.S. District Judge Roy K. Altman distinguished the Burger King case from a dismissed suit against McDonald’s and Wendy’s, citing more significant alleged exaggerations and a plausible claim that consumers were misled about size changes over time.
• Originally filed in 2022, the Burger King class action now includes plaintiffs from a dozen states, including New York, Connecticut, Ohio, California, Michigan and Massachusetts.

Burger King false advertising class action overview:

• Who: Four Burger King customers are suing the company, saying they were tricked by the company’s marketing images.
• Why: The customers say Burger King exaggerates the size of its burgers in marketing images by about 35%.
• Where: The class action lawsuit would represent a nationwide class of Burger King customers.

(March 30, 2022)

Burger King makes its burgers look about 35% bigger than they really are in its advertising images, tricking customers out of their hard-earned money, a new class action lawsuit alleges.

Plaintiffs Walter Coleman, Marco DiLeonardo, Matthew Fox and Madelyn Salzman filed the class action complaint against Burger King Corp. on Mar. 28 in a Florida federal court, alleging deceptive trade practices.

The fast-food chain advertises its burgers as larger burgers compared to competitors that contain oversized meat patties and ingredients that “overflow over the bun” to make it appear that the burgers are approximately 35% larger and contain more than double the meat than the actual burger, the lawsuit states.

The class action alleges Burger King began to materially overstate the size of its burgers in its advertisements in September 2017.

Comparing marketing images from pre-2017 to now, the lawsuit shows that the burger has increased in size by approximately 35% and the amount of beef increased by more than 100%.

“Although the size of the Whopper increased materially in Burger King’s advertisements, the recipe or the amount of beef or ingredients contained in Burger King’s Whopper has never changed,” the class action lawsuit states. 

The lawsuit also provides a sad-looking photo of a real Whopper for comparison’s sake. The lawsuit says that almost every burger on the menu is overstated in ads.

Burger King tempts people to buy overpriced products, lawsuit alleges

According to the lawsuit, Burger King’s advertisements for its burger and menu items are unfair and financially damaging to consumers who receive food that is much lower in value than what was promised.

“Burger King’s actions are especially concerning now that inflation, food and meat prices are very high and many consumers, especially lower income consumers, are struggling financially,” the class action lawsuit states. “Burger King’s promise to consumers of a large portion of food with their purchase is also causing consumers to come to, or order from, Burger King and make purchases that they would not have otherwise made.”

The company is also unfairly competing with burger chains that more fairly advertise the size of their burger and menu items, the lawsuit states.

The plaintiffs, Burger King consumers who feel they bought menu items that were smaller than advertised, are looking to represent anyone in the United States who bought an “overstated menu item” from the fast-food restaurant beginning Sept. 1, 2017.

They’re suing under state consumer laws and for breach of contract, negligent misrepresentation and unjust enrichment. The plaintiffs are seeking certification of the class action, damages, fees, costs, an order to stop exaggerating the size of menu items and a jury trial.

They’re looking to represent anyone in the United States who purchased a Burger King menu item based on “false and misleading advertising” concerning the size and the amount of ingredients contained in said menu item.

In 2020, Burger King escaped a class action lawsuit alleging the company deceived its customers about how its Impossible Whoppers are cooked.

Have you ordered a menu item from a fast food restaurant that was smaller than advertised? Let us know in the comments.

The plaintiffs are represented by Anthony J. Russo Jr. of The Russo Firm and James C. Kelly of The Law Office of James C. Kelly.

The Burger King false advertising class action lawsuit is Walter Coleman, et al. v. Burger King Corp., Case No. 1:22-cv-20925, in the U.S. District Court for the Southern District of Florida.

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