Burger King's ads may have told a whopper about burger size

Coleman v. Burger King Corp., 2025 WL 1294605, No. 22-cv-20925-ALTMAN/Reid (S.D. Fla. May 5, 2025)

Nineteen plaintiffs brought claims under 13 states’ laws alleging that BK falsely advertised the size/amounts of ingredients in various burgers; the court denied BKC’s motion to dismiss.

BKC allegedly “advertises its burgers as large burgers compared to competitors and containing oversized meat patties and ingredients that overflow over the bun to make it appear that the burgers are approximately 35% larger in size, and contain more than double the meat, than the actual burger.” The complaint also quotes multiple negative reviews posted by dissatisfied consumers.

images of ads v actual burgers

Previously, the court found that plaintiffs could assert “consumer-protection counts only for those states in which the named plaintiffs purchased their Burger King products.” And they couldn’t advance a breach-of-contract claim based on BKC’s “out-of-stores ads” since “courts generally consider it unreasonable for a person to believe that an advertisement constitutes a binding offer.” But BKC’s “in-store ‘menu ordering boards’ ” were “very different from the advertisements one might see on the Internet or on TV” and could constitute an “offer” under contract law.

BKC argued that reasonable consumers couldn’t have been deceived because “[s]tyling ingredients for photographic purposes, such as by pulling them forward so a head-on image clearly shows what the burger contains, is not misleading to a reasonable consumer visiting a quick-service restaurant, and no precedent suggests otherwise.”

All but one of the relevant states apply the reasonable-consumer test in (substantially) the same way as Florida does, while Arizona uniquely doesn’t consider reasonableness at all and instead asks us to analyze the allegedly deceptive conduct “from the perspective of the ‘least sophisticated reader,’ ” though “bizarre or idiosyncratic interpretations” will not preserve a patently frivolous claim. Nonetheless, Arizona law requires courts to assume “that consumers of below-average sophistication or intelligence are especially vulnerable to fraudulent schemes” and prohibits us from assessing deceptiveness based on “assumptions about the ‘average’ or ‘normal’ consumer.” Arizona law focuses on whether there was a “capacity to mislead” rather than on whether a reasonable consumer would be misled.

Arizona aside, a reasonable consumer could have been deceived.  “[A]t this very preliminary phase of the case, and drawing all reasonable inferences in the Plaintiffs’ favor, BKC’s advertisements—when compared to other, similar advertisements—have a greater capacity to deceive or mislead reasonable consumers.” Although “exaggeration of an item’s quantity (and, for that matter, quality) with idealized imagery is an extremely common technique in the world of food advertising,” plaintiffs plausibly alleged that the ads here “go beyond mere exaggeration or puffery” and “make it appear that the burgers are approximately 35% larger in size, and contain more than double the meat, than the actual burger.” Even more problematically, BKC’s advertisements allegedly changed in 2017 to “materially overstate the size of its burgers” in comparison to previous years: 

old and new ads

This wasn’t mere exaggeration through common food-styling practices; plaintiff plausibly alleged that BKC misled customers into falsely believing that the size of BKC’s burgers has, in fact, increased since 2017.  “[R]easonable consumers could be misled if the disparity between the size of a burger in an ad and size of the burger in the real world becomes too great. …Who are we to decide whether such 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?” The 2017 change was very important here. “A change like this (the Plaintiffs have plausibly suggested) could lead reasonable consumers to believe (incorrectly, as it turns out) that BKC increased the size of its burgers in 2017.”