Are Burger King menu boards whoppers?

Coleman v. Burger King Corp., No. 22-cv-20925-ALTMAN (S.D. Fla. Aug. 25, 2023)

Plaintiffs alleged that Burger King, through its advertisements and in-store ordering boards, “materially overstates” the size of (and the amount of beef contained in) many of its burgers and sandwiches. Allegedly, “[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%. Although the size of the Whopper and the beef patty increased materially in Burger King’s advertisements, the amount of beef or ingredients contained in the actual Whopper that customers receive did not increase.”

Burger King responded that it makes very clear how much beef the Whopper contains. Its website says: “Our Whopper Sandwich is a ¼ lb* of savory flame-grilled beef topped with juicy tomatoes, fresh lettuce, creamy mayonnaise, ketchup, crunchy pickles, and sliced white onions on a soft sesame seed bun,” with the asterisk after the burger’s weight referring to the “[w]eight based on a pre-cooked patty.”

The court first refused to consider the consumer protection laws of 50 different states without a named plaintiff from every state. Although the named plaintiffs had Article III standing to assert claims on behalf of absent class members from other states—they had alleged a redressable injury—they couldn’t assert claims under the laws of states that did not apply to them because they hadn’t made their purchases in those states. Plaintiffs were directed to file an amended complaint for only those states in which they’d purchased products. They could eventually seek certification to assert materially identical consumer-protection claims on behalf of class members from other states, and they could even list the states whose consumer-protection statutes (they believe) are similar enough to justify certification. They could also try a nationwide FDUTPA claim based on allegations that, from its headquarters in Florida, Burger King disseminated throughout the whole country its allegedly deceptive communications.

Side note: “in deciding whether a named plaintiff has standing to pursue the claims of out-of-state class members, some of our colleagues have tried to distinguish between state common-law and state statutory claims.” That doesn’t work because (1) many states have codified the traditional common-law claims, and it doesn’t make much sense to think of traditionally common-law claims as distinct from statutory law. And (2) regardless, the cause of action is still “a creature of state law,” not some 50-state blanket.  

Breach of contract: Burger King argued that its ads weren’t binding offers.  Generally, ads are merely “solicitations to bargain,” not offers, and so here with the TV and online ads. But in-store “menu ordering boards” were different. An ad can become an offer if a “reasonable person” would have thought that “the advertisement or solicitation was intended as an offer.” These in-store ordering boards—unlike BKC’s TV and online ads—list price information and provide item descriptions. “Their whole purpose is to present to the potential customer an offering of the available menu items (and their prices). They’re thus very different from the advertisements one might see on the Internet or on TV—which cannot constitute offers precisely because they cannot promise that the item will still be available when, at some future date and time, the customer finally elects to walk into the store.” Although it’s not reasonable to believe that an ad promised that inventory would always be available, the menu boards, “by definition, are only subject to acceptance by the handful (or so) of customers who are actually in the store looking to purchase a sandwich.”

Burger King argued that a sandwich’s appearance isn’t an essential term of a contract. But the court wouldn’t “lightly suppose that a proprietor can offer to sell you a certain amount of food at a specified price only to provide you with less food for the same price.” Although a 1% exaggeration wouldn’t be a problem, the court wouldn’t impose its own judgment about whether “a seemingly substantial difference between what was promised and what was sold was (or was not) enough to alter the purchasing preferences of reasonable American consumers.”

Negligent misrepresentation survived (for now) because Florida doesn’t require a special relationship; unjust enrichment survived as an alternative claim.