For years, fast food chain Burger King used an advertising jingle that exhorted its customers to "have it your way." While diners had wanted what they were seeing in the restaurant's ads and on its menu boards, at least a few customers didn't feel like they were getting what they'd been promised when the food was delivered. Nineteen disgruntled patrons, feeling they'd been deceived, filed a class action suit in 2022 to get to the meat of the matter.
Burger King's hopes of making the whole matter disappear got cooked when U.S. District Judge Roy K. Altman denied their motion to dismiss the lawsuit on May 5, 2025. A similar lawsuit against competing chains Wendy's and McDonald's was dismissed in September 2024. Burger King is now potentially going to have to face a grilling in the courtroom.
Where's the Beef?
The battle for fast food burger supremacy has been waged between Burger King and McDonald's since the mid-1950s, with Wendy's joining the fray in 1969. Their menus consist of relatively similar items with different names. For example, the McDonald's Big Mac, Wendy's Dave's Double, and Burger King's Double Whopper contain essentially the same ingredients.
Given the extremely competitive and lucrative burger market at stake, it's not surprising that each chain is massively invested in advertising their brand. Displaying their food items in the most alluring and tantalizing manner possible can mean the difference between success and failure.
According to the lawsuit, in 2017 Burger King, owned by Restaurant Brands International, began altering its ad campaign to make the food shown appear to be larger than it actually was. Photos included in the court documents offer before-and-after examples of Burger King's advertised version of their Whopper.
A post-2017 shot displays a Whopper sandwich with the meat patty of the burger hanging over the edges of the lower half of the bun, a marked difference from the earlier version. According to the suit, the burger shown is 35% larger overall than the previous picture, with the meat patty doubled in size. The suit does not elaborate on how these figures were determined.
The suit also provides advertising and menu images for the Big King and Whopper Melt sandwiches, interposed with versions purchased by disgruntled customers. Complaints from social media and comments from YouTube fast food critics are included to indicate the level of dissatisfaction patrons have with what Burger King presents as their food in advertisements and what's actually delivered.
Citing injury from the overstated menu items, the class-action suit accuses Burger King of violation of state consumer protection laws, breach of contract, negligent misrepresentation, and unjust enrichment. The plaintiffs are seeking compensatory and punitive damages along with enjoining Burger King from continuing with deceptive advertising.
Many a Small Thing Has Been Made Large by the Right Kind of Advertising
In its motion to dismiss, Burger King implied that the complainants hadn't read the ingredients of the targeted sandwiches, all of which were present in both the photographed and store-purchased versions. It insisted that all beef patties used in their ads and menu photos were the same 1/4-pound burgers sold in their restaurants. So why did they look so different?
The point of a food advertisement or menu photo is to make the item appear desirable and delicious. Ads use tricks to do so, including swapping out white glue for milk or using cubes made of plastic to represent perfect ice cubes in a drink.
Burger King argued that while the ingredients were the same, the sandwiches in the ads had been made as attractive as possible. The meat patty hung over the bun because it had been pulled forward for the shot. The tomato slices and lettuce leaves had been artfully posed with time and effort not available to employees trying to serve up food as quickly as possible. There is a legal concept in advertising called "puffery", where companies exaggerate their product in a way that consumers are not meant to take literally, but as the company's opinion.
Their reasoning wasn't enough to convince Judge Altman to grant Burger King's second motion for dismissal, with the first denied in 2023. Disagreeing with Burger King's argument that any reasonable customer can't be deceived by a food advertisement that contains the promised ingredients, Judge Altman denied the motion and allowed the case to continue. A jury trial will determine if the next meal from Burger King is a happy one.
Related Resources
- What Is a Motion To Dismiss? (FindLaw's What To Expect When Going to Court)
- 5 Reasons To Sue a Restaurant (FindLaw's Law and Daily Life)
- How To File a Class-Action Suit (FindLaw's Litigation and Appeals)
