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MIAMI — 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% 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.
Neither Burger King nor its lawyers immediately responded on Tuesday to requests for comment.
Burger King is a unit of Canada-based Restaurant Brands International, whose brands also include Tim Hortons, Popeyes and Firehouse Subs.
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.
