Consumers Allege Burger King Falsely Advertises Size of Whopper, Other Menu Items [UPDATE]

A federal judge in Florida has ruled that Burger King must face the proposed class action detailed on this page, granting in part and denying in part Burger King’s effort to dismiss the case. 

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In a 22-page order submitted on August 23, U.S. District Judge Roy K. Altman relayed that the plaintiffs argued that Burger King essentially made an offer through its advertisements and provided “specification of the essential terms” in the form of photographs of what the Whopper and other products look like. The plaintiffs also contended that they accepted and purchased the Burger King items at issue “based on the essential terms of the offers” and would not have done so “had they known that they were much smaller than advertised.” 

“The Plaintiffs have adequately pled the existence of a valid contract,” Judge Altman found.

Though the court agreed with Burger King in stating that a reasonable person generally would not have interpreted the restaurant’s TV and online ads as binding offers, the same could not be said of Burger King’s in-store menus, which Judge Altman pointed out “do list price information and do provide item descriptions.” 

“Their whole purpose is to present to the potential customer an offering of the available menu items (and their prices),” Judge Altman wrote. “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.” 

Ultimately, the case was allowed to proceed given that the plaintiffs said they relied on the information on Burger King’s in-store menu boards in deciding whether to buy a sandwich. 

“Taking the Plaintiffs’ factual allegations as true—and construing them in the light most favorable to the Plaintiffs—we conclude that a reasonable person could have viewed Burger King’s in-store depictions of its menu items as offers, and not merely as invitations to bargain,” the judge ruled. 

Further, the judge questioned Burger King’s stance that a sandwich’s appearance isn’t an essential term of a contract, especially since the plaintiffs contended that the food they received was significantly less than what was advertised. The foregoing was plenty in allowing the plaintiffs’ claims to continue, Judge Altman shared. 

“Ultimately, Plaintiffs allege that they purchased Burger King products on the expectation that those items would resemble the images ‘on Burger King’s store ordering board,’” the order says. “They also allege that they received items that were materially ‘smaller than advertised,’ and that they wouldn’t have purchased those items had they known their true size. That’s enough for now.” 

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