Source - Food & Beverage Litigation and Regulatory Update | Issue 807

Burger King Whopper Lawsuit to Proceed

A Florida federal court has denied a motion to dismiss some claims in a lawsuit alleging Burger King Corp. “materially overstates” the size of its hamburgers. Coleman v. Burger King Corp., No. 22-20925 (S.D. Fla., entered August 23, 2023). The plaintiffs alleged Burger King’s marketing showed the burgers as 35% larger and containing 100% more beef.

Burger King argued that its advertisements are solicitations that could not form the basis of a contract, and the court confirmed but found that the contract formed on other grounds. “[W]e agree with Burger King that a reasonable person wouldn’t have interpreted Burger King’s TV and online ads as binding offers,” the court held. “But the same can’t be said of Burger King’s in-store ‘menu ordering boards.’ … These in-store ordering boards—unlike BKC’s TV and online ads—do list price information and do provide item descriptions. [] Plus, these ordering boards aren’t advertisements at all. So far as we can tell, these ordering boards are actually in the stores when the customers walk in. 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.”

The plaintiffs plausibly pleaded the existence of a valid contract, the court held, and they asserted that they relied on the information on the menu ordering boards. “[W]e’ll accept (for now) those ordering boards as offers. … 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 court dismissed Burger King’s argument that the appearance of the sandwich “isn’t an essential term of a contract.” “How can that be?” the court asked. “We won’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. Nor will we simply assume that most reasonable people would take lying down this incongruity between the amount of sustenance they were promised and the amount of sustenance they got. We’ll agree with Burger King (of course) that most reasonable people would be unfazed by, say, a one-percent disparity between the amount of food they were offered and the amount they ultimately received—just as (we would think) Burger King would concede that a fifty-percent delta between what was promised and what was sold would probably vex most reasonable consumers.”

“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 court noted. “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.”

Read more food, beverage and agribusiness industry news in the Food & Beverage Litigation and Regulatory Update.