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Burger King Forced To Litigate Whopper of a Lawsuit

By Michael DeRienzo, Esq. | Last updated on

By the 1970s, Burger King was in trouble. Despite being around longer than its main competitor McDonald's, Burger King was lagging far behind in size, revenue, and overall success. So, as the first shot in the so-called "Burger Wars" of the 1980s, Burger King released an attack advertisement on McDonalds. In the video, a young girl explains to the audience that McDonald's burgers are 20% smaller than Burger King's burgers.

Ironically, more than forty years later, Burger King is once again involved in a fight over burger size. Only this time, the burger giant is being sued for advertising burgers 35% larger than actually served.

Where's the Beef?

While it might be the Wendy's slogan, this question is at the heart of the lawsuit currently pending in Florida. In March, 2022, a group of Burger King customers filed a class action lawsuit against the restaurant for false advertisement. According to the complaint, Burger King advertises its Whopper as larger than its competitors' burgers in pictures and advertisements. In reality, however, the burgers are smaller, contain half the meat, and are not overflowing with lettuce, tomatoes, onions, pickles, and condiments.

Burger King tried to get the case dismissed, arguing that it was not required to deliver burgers that looked exactly like the pictures. However, the court refused, ruling that it was up to a jury to decide what a reasonable consumer would believe.

This is not the only fast food restaurant facing these lawsuits. Both Wendy's and McDonald's are facing similar lawsuits over their burger sizes.

Good Marketing or Unethical Trickery?

It's no secret that you can't believe everything you see in a commercial. For as long as there have been products, there have been salespeople pushing a product that later was found to be bad for you. Just look at the cigarette commercials from the 1950's. According to the commercials, doctors agree that smoking is good for you!

Clearly, that was wrong. The real question was whether the commercials were innocently ignorant given the science known at the time or purposefully deceptive.

The United States Federal Trade Commission, and various states, all have specific consumer protection truth-in-advertising laws. These laws are designed to prohibit companies from releasing deceptive and misleading advertisements to sell more products.

To determine this, the FTC views the advertisement from the point of view of a "reasonable consumer." This mythical customer is your typical, everyday buyer that, without any additional investigation, views the advertisement and makes an opinion about the product.

The question remains whether Burger King can show that the reasonable customer really expected that 35% larger hamburger when it asked for it to be made "their way." As of now, that's up to the jury to decide. Hopefully they're not all Big Mac fans.

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