A federal judge in Miami has denied Burger King’s motion to dismiss a lawsuit by customers accusing the company of misrepresenting the size of its popular Whopper and Big King sandwiches with photos showing the meat patties as larger than what customers actually receive.
The suit, filed in March 2022, seeks damages on behalf of four named plaintiffs and millions of others who it claims suffered financial damages when the sandwiches they received were smaller than was depicted in ads and the stores’ menu boards.
The suit also demands that the Miami-based Burger King Corp. replace the photos with ones showing the products’ actual sizes.
In a 22-page ruling dated Aug. 23, U.S District Judge Roy K. Altman said that the plaintiffs may proceed with their claims accusing the fast food company of breach of contract and negligent misrepresentation.
The lawsuit compared a modern-day Whopper ad with an ad produced prior to September 2017 and argued that a “side-by-side comparison of Burger King’s former Whopper advertisement to the current Whopper advertisement shows that the burger increased in size by approximately 35% and the amount of beef increased by more than 100%.” But the size of the burgers served by the restaurant chain did not change at all, the suit states.
Evidence filed with the lawsuit included photos from a Big King ad showing two cheese-topped patties extending wider than their bun next to an actual Big King with meat smaller than the bun.
Altman wrote, “Who are we to decide whether such a seemingly substantial difference between what was promised and what was sold (or was not) enough to alter the purchasing preferences of reasonable American consumers? Far better, it seems to us, to leave that determination to the consumers themselves, who — if the case survives that far — will get to sit in the jury box and tell us what reasonable people think on the subject.”
Asked to comment on the judge’s decision, Burger King issued this statement: “The plaintiffs’ claims are false. The flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of Whopper sandwiches we serve to Guests across the U.S.”
The judge rejected the lawsuit’s claim that photos in Burger King’s advertising established “an offer” that became part of a binding contract. Photos in ads, other court rulings determined, cannot be considered offers because ads contain no purchase information, prices or descriptions, Altman wrote.
But photos in Burger King’s in-store menu boards are a different story, the judge wrote. “These in-store ordering boards — unlike (Burger King’s) TV and online ads — do list price information and do provide item descriptions.”
He added, “So far as we can tell, these ordering boards are actually in the stores when the customers walk in. Their whole purpose is to present to the potential customer an offering of the available menu items (and their prices).”
A similar lawsuit is pending in Brooklyn federal court against McDonald’s and Wendy’s by the same three law firms: Weston-based Anthony John Russo, Jr., New York-based James C. Kelly and Garden City, N.Y.-based Mark Anthony Panzavecchia.
That suit claims the companies use undercooked beef patties in ads, making them look 15% to 20% larger than what customers get.
