Burger King must face a lawsuit claiming it makes its Whoppers look much larger and meatier on its menus, a judge rules

• Burger King has to face a lawsuit claiming its burgers look larger and meatier on its menus, a judge ruled.
• The lawsuit claims the chain changed its images of Whoppers to make its meat content look twice as large.
• Burger King, whose motion to dismiss was partly granted, said the claims were "false."

Burger King must face a lawsuit claiming its Whoppers look much larger and meatier on its menus after a judge turned down the company's motion to dismiss it.

The class-action lawsuit, first filed in March 2022, accuses the burger giant of misleading customers about its menu items, citing social-media reviews and an Insider article from 2020.

"Burger King advertises its burgers as large burgers compared to competitors and containing oversized meat patties and ingredients that overflow over the bun," the lawsuit claims.

The lawsuit alleges that Burger King changed the photos of Whoppers used in promotional materials to make the overall burger look around a third bigger and the beef content more than twice as large. "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," the lawsuit, amended in May 2022, claims.

It alleges that Burger King "materially overstates the size of nearly every menu item in its current advertisements."

"Burger King's actions are especially concerning now that inflation, food, and meat prices are very high and many consumers, especially lower income consumers, are struggling financially," the lawsuit says.

In a motion to dismiss in May 2022, Burger King said that that each sandwich it sold looked different because they're handmade and that the photos on its menu "accurately" showed the ingredients. It added that "reasonable" customers wouldn't expect each burger to come out looking exactly like it does in adverts.

The motion also says that the customers shouldn't have "expected" the burgers to contain more beef than they did because it states portion sizes on its website. The Whopper, for example, is listed as containing a quarter-pounder patty.

"Food in advertisements is and always has been styled to make it look as appetizing as possible. That is hardly news; reasonable consumers viewing food advertising know it innately. This lawsuit unreasonably pretends otherwise," Burger King said at the time.

In an order on August 23, 2023, US District Judge Roy Altman granted Burger King's requests to dismiss claims related to its online and TV ads as well as claims that the company violated state consumer-protection laws.

He said that the plaintiffs could still go ahead with the other parts of the lawsuit: claims of breach of contract, negligent misrepresentation, and unjust enrichment.

"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?" Altman wrote in the filing.

"Far better, it seems to us, to leave that determination to the consumers themselves, who — if the case survives that far — will get to sit in the jury box and tell us what reasonable people think on the subject."

When asked for comment on the judge's ruling, a Burger King spokesperson told Insider: "The plaintiffs' claims are false. The flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of Whopper sandwiches we serve to Guests nationwide."

One of the lawyers representing the plaintiffs, New York-based James C. Kelly, has also filed similar class-action cases against Taco Bell, Wendy's, and McDonald's.