Hold the lies: Judge says Burger King must face false-advertising lawsuit over the size of its Whopper
US District Court for the Southern District of Florida
- A judge this week denied Burger King's request to dismiss a false advertising lawsuit.
- The lawsuit claims Burger King's Whopper ads mislead consumers about its size and ingredients.
- The case is the latest false-advertising lawsuit against fast-food chains.
Burger King's Whopper lawsuit just won't go away.
A federal judge in Florida this week denied Burger King's request to dismiss a lawsuit against the company for false advertising related to its famous burger. It is the latest case of false advertising targeting fast-food chains.
The lawsuit represents 19 people from 13 different states who say they purchased Burger King's signature Whopper based on "false and misleading advertising concerning the size and/or the amount of ingredients."
In a statement to Business Insider, Burger King denied the claims.
"The plaintiffs' claims are false," a spokesperson for the company told BI. "The flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of burgers we serve to guests across the US."
Burger King filed a motion to dismiss the lawsuit in May 2022, two months after it was first filed. It argued that since every burger is hand-made at the restaurant, the "look" of each sandwich "necessarily will differ."
US Southern Florida District Judge Roy Altman, however, said in his ruling on Monday that he would allow the plaintiff's claims of negligent misrepresentation to move forward.
In some states, the law requires that a customer have a "special relationship" with a company to sue it for misrepresentation in ads. The law defines a special relationship as requiring a "position of confidence or trust," like with a lawyer or engineer. A food service business would not typically fall into this category. But Florida law does not have this requirement, Altman wrote.
Altman said Burger King's lawyers were "resisting the common-sense reading of Florida law" by suggesting that Burger King could not be liable based on the absence of a special relationship.
The Russo Firm, a class action law firm representing the plaintiffs, wrote in a blog post that Altman's ruling was "significant."
"The court's decision underscores the importance of truthful advertising and may set a precedent for how fast-food chains represent their products," the post says. "The outcome of this case could have broader implications for marketing standards within the industry."
The Whopper lawsuit is the latest example of false-advertising claims targeting fast-food chains. In 2023, for example, a federal judge in Brooklyn dismissed a similar false advertising lawsuit against Wendy's and McDonald's that accused the restaurants of marketing their burgers as larger than reality.
US District Judge Hector Gonzalez said in his ruling for that case that the plaintiff did not prove that a reasonable consumer would have been misled by the ads.
Also in 2023, a man filed a class action lawsuit against Buffalo Wild Wings, accusing the company of misrepresenting its boneless chicken wings, which are actually made with chicken breast meat.
Bill Marler, an attorney specializing in food safety cases, previously told BI that these kinds of class action lawsuits are often legally unproductive and walk the "thin line between consumer advocacy and just being annoying."
"It raises the issue about what's the real purpose here? Is it that they're being a consumer advocate and then extracting fees and costs out of the company to discourage them from doing it again? Or is it just a tool to extract fees and costs out of a company?" Marler said.