A class-action lawsuit filed by plaintiffs in New York and Florida allege that Burger King is telling a “whopper” with false and misleading advertising about the size of its burgers and ingredients. So, what’s the beef?
Burger Marketing or Selling a Whopper?
In 2022, a proposed class of plaintiffs filed a complaint against Burger King in the Southern District of Florida. They alleged that the size of its food was materially overstated to consumers in its advertising. Plaintiffs allege that the advertisements claim the burgers are large and show meat and toppings coming out of the bun, showing the burgers at 35% larger than the actual products. Burger King moved to dismiss the case, maintaining that the amount of ingredients has not changed, and that it is clear in its advertising how much beef a Whopper contains: a quarter pound of beef per sandwich.
The court issued an order that dismissed a number of the plaintiffs’ claims, but allowed claims of breach of contract (as to Burger King’s in-store menu board), negligent misrepresentation, and unjust enrichment to continue. One remaining issue is whether the advertising of the burger and the burger’s subsequent purchase constitute a contract, and whether burger size is an “essential term” of that contract. On that topic, the judge wrote:
“Who are we to decide whether [the] seemingly substantial difference [noted by plaintiffs] between what was promised and what was sold was (or was not) enough to alter the purchasing preferences of reasonable American consumers? 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.”
Measuring Consumer Confusion: Regulators Have an Appetite for Surveys
When parties in litigation require a reliable measurement of what reasonable consumers think, they may rely on a consumer survey. As we see this case unfold, we may also see consumer survey evidence being submitted by one or both sides. How would one measure what a reasonable consumer would expect from a Whopper, based on the advertisements? One might conduct a false advertising survey to measure the messages conveyed by advertising, packaging, and other marketing communications. This would allow researchers to assess consumer beliefs about the amount of beef and other ingredients in a Whopper, and the materiality of those beliefs to consumer purchasing decisions.
MMR Strategy Group designs consumer surveys to measure advertising communications and materiality, together or separately. Contact us for reliable consumer survey research to provide evidence in false advertising litigation.