Burger King is being sued over the size of its Whopper.

Burger King’s request to have a lawsuit against it dismissed on the grounds that it deceived hungry consumers by making its Whopper sandwich appear larger than it actually is was denied by a US judge.

District Judge Roy Altman in Miami ruled that the fast food behemoth must fight an allegation that its presentation of Whoppers on in-store menu boards misled logical customers and amounted to a breach of contract.

Burger King was accused by customers in a proposed class action lawsuit of advertising its burgers as having toppings that “overflow over the bun,” giving the impression that they are 35% larger and have twice as much meat than what the restaurant offers.
Burger King, a division of Restaurant Brands International, disagreed and said it was not compelled to serve burgers that were “exactly like the picture,” but the court instructed the jury to “tell us what reasonable people think.”

Mr. Altman also allowed the consumers to pursue negligence-based and unjust enrichment arguments in his ruling, which was made public on Friday.

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He rejected assertions based on TV and web advertisements since he could discover no instances in which Burger King had promised a burger’s “size,” or patty weight, and then failed to deliver on it.

Reuters news agency on Tuesday sent inquiries for comment to Burger King and its attorneys, but neither party responded right away. The plaintiffs’ attorney was unavailable for comment right away.
Earlier attempts to reach a resolution through mediation failed.
In a federal court in Brooklyn, New York, McDonald’s and Wendy’s, two other fast food franchises, are defending themselves against a related claim. On Monday, the plaintiffs’ attorney there used Mr. Altman’s decision to support keeping the case open.

Yum Brands subsidiary Taco Bell was sued last month in a Brooklyn court for allegedly selling Mexican pizzas and Crunchwraps that only have half the content that is said to be inside.
Damages in each lawsuit total at least $5 million.
Coleman et al. v. Burger King Corp., No. 22-20925, U.S. District Court, Southern District of Florida.

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