U.S. judge rules Burger King must face lawsuit over Whopper ads

Signage at a Burger King restaurant in Indianapolis, June 20, 2012. (AP / Michael Conroy)

Burger King must face a lawsuit claiming it misleads customers with advertisements that make its Whopper sandwich and other products appear larger than they are.

In a decision on Monday, U.S. District Judge Roy Altman in Miami found it plausible that “some” reasonable consumers in the proposed class action could be deceived by Burger King’s ads.

Nineteen customers from 13 states accused Burger King of materially overstating the size of nearly all menu items in its in-store and online ads.

They cited its alleged portrayal of burgers that “overflow” the buns, with the Whopper appearing 35 per cent larger than the actual burger and containing more than double the meat.

Burger King acknowledged that its photographers “styled sandwiches more beautifully” than workers do in restaurants, but said reasonable consumers know the point of menu board photos is to make items appear as appetizing as possible.

Altman nonetheless found allegations that Burger King’s ads “go beyond mere exaggeration or puffery.”

He distinguished the case from a similar lawsuit against McDonald’s and Wendy’s that a Brooklyn, New York, federal judge dismissed in September 2023.

Altman said Burger King allegedly overstated the size of its products “to a much greater degree,” including in post-2017 ads where the Whopper appeared larger than in earlier ads.

Burger King is a unit of Toronto-based Restaurant Brands International, whose brands also include Tim Hortons, Popeyes and Firehouse Subs.

“The plaintiffs’ claims are false,” Burger King said in a statement on Tuesday. “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 U.S.”

Anthony Russo, a lawyer for the plaintiffs, said he was pleased with the decision.

A similar lawsuit against Subway is pending in the Brooklyn court.

The case is Coleman et al v Burger King Corp, U.S. District Court, Southern District of Florida, No. 22-20925.

(Reporting by Jonathan Stempel in New York; Editing by Mark Porter and Bill Berkrot)