A long-running fight over how big a Whopper looks in Burger King’s ads just hit a wall in federal court.
Recently, a U.S. judge in Miami refused to let a group of customers band together in a nationwide class action, ruling that their claims were too different from one another to be handled in a single case. The decision hasn’t ended the lawsuit, but it has sharply limited the potential damage Burger King could face.
What the case is about
Nineteen customers from 13 U.S. states sued Burger King, accusing the chain of misleading people with online images and in-store menu boards that, they say, show burgers far larger than what actually arrives in the wrapper.
Their complaint claimed that the chain “materially inflated” the size of nearly all menu items in marketing, that Whopper patties in ads appeared to “overflow” the buns, and that the advertised burgers looked about 35% larger with more than double the meat of the real thing.
They argued that this kind of visual inflation violated state consumer protection laws and inflated the value consumers thought they were getting.
Why the judge said no to a nationwide class
U.S. District Judge Roy Altman agreed the case could move forward back in May, when he denied Burger King’s request to toss it entirely. This time, though, he drew the line at turning it into a coast-to-coast class action.
In his new ruling, Altman pointed to two main problems. First, the lawsuit relies on consumer protection statutes from 13 different states, and he said those laws have “many differences,” making it hard to treat all the claims as one unified class.
Second, each customer’s experience—what ad they saw, what store they visited, when they bought, what they paid, and how big their specific burger was—would need individual proof, especially since Burger King churned out over 1,000 ads with hundreds of photos snapped from every angle and prep stage during the class period (starting April 1, 2018).
Prices have “undoubtedly waxed and waned” too, so every plaintiff would have to document their exact buy. The plaintiffs’ handful of 2021-2022 YouTube screenshots from Arizona and California drive-thrus? Too narrow to show nationwide harm or a “common injury,” Altman ruled—making the case too splintered for class treatment.
What Burger King and the plaintiffs are saying
While Burger King issued a statement welcoming the development, the customers who brought the lawsuit have reportedly remained silent on the ruling.
The company said it was satisfied with the decision and repeated the same line it used back in May, when it first pushed back on the allegations: that the plaintiffs’ claims are false, and that “the flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of burgers we serve to guests across the U.S.”
The ruling doesn’t throw out the customers’ individual claims, but it does remove the leverage and scale that a certified nationwide class would have given them.
For now, the Whopper size fight isn’t over — it’s just moving forward individually rather than collectively. Each of the 19 plaintiffs would need to prove their individual case separately, a far more expensive and time-consuming process that sharply reduces both Burger King’s financial risk and the likelihood that individual customers will pursue costly litigation on their own.