Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Fla.: Ruling in Burger King ad case may have consumers saying ‘I’m lovin’ it’, (May 8, 2025)

By Donielle Tigay Stutland, J.D.

Burger King’s ads could have misled a reasonable person as to the size of its burgers.

The federal district court in Miami, Florida has denied a motion to dismiss a proposed class suit alleging Burger King Corp. ads exaggerated the size of its Whopper burger. A group of consumers from eleven states alleged that Burger King overstated the size of and the amount of beef contained in many of its burgers and sandwiches in both its advertisements and on in store menu boards. The court determined that Burger King’s advertisements could deceive a reasonable consumer, noting that “BKC’s advertisements—when compared to other advertisements—have a greater capacity to deceive or mislead reasonable consumers,” and denied the motion to dismiss the claims related to the states’ consumer protection laws (Coleman v. Burger King Corp., No. 1:22-cv-20925-RKA (S.D. Fla. May 5, 2025)).

Background. Nineteen consumers allege that beginning in September 2017, Burger King began to materially overstate the size of its burgers in its advertisements. The consumers alleged that they bought Burger King burgers or sandwiches based on the representations Burger King made in its advertisements and in store menu boards. The burgers they bought allegedly came with much less meat than expected. They also alleged that they would not have bought the burgers or sandwiches if they had known the food items were going to be smaller than advertised.

The consumers brought claims under all fifty state consumer protection statutes, claims for breach of contract, a claim of negligent misrepresentation and a claim for unjust enrichment. Burger King filed to dismiss all claims in August 2023, and the court at that time granted Burger King’s motion to dismiss, with leave to amend, with respect to claims brought under state consumer protection statutes, finding it was an impermissible “shotgun” pleading. The court denied Burger King’s motion to dismiss the consumers’ breach of contract claims, negligent misrepresentation claim and unjust enrichment claims.

An amended complaint narrowed the claims to the consumer-protection laws of eleven different states: Florida, New York, California, Illinois, Arizona, Connecticut, Massachusetts, Michigan, New Jersey, Kentucky, and Pennsylvania. Burger King again moved to dismiss.

Consumer protection. Ten of the eleven state laws at issue apply the reasonable consumer standard with respect to deceptive marketing. The remaining state, Arizona, applies a “least sophisticated consumer” test, which focuses on the capacity to mislead rather than reasonableness.

Burger King argued that the consumers failed to show that a “reasonable consumer” would be duped by BKC’s promotional photos because “[s]tyling ingredients for photographic purposes, such as by pulling them forward so a head-on image clearly shows what the burger contains, is not misleading to a reasonable consumer visiting a quick-service restaurant, and no precedent suggests otherwise.”

The consumers allege that the issue with the offending in-store (and online) advertisements is that BKC “advertises its burgers as large burgers compared to competitors and containing oversized meat patties and ingredients that overflow over the bun to make it appear that the burgers are approximately 35% larger in size, and contain more than double the meat, than the actual burger.”

The court found it plausible to believe that some reasonable consumers could be deceived by BKC’s advertisements. The court agreed with the consumers “at this very preliminary phase of the case, and drawing all reasonable inferences in the Plaintiffs’ favor, BKC’s advertisements—when compared to other advertisements—have a greater capacity to deceive or mislead reasonable consumers.”

In response to Burger King’s argument that the advertisements constitute “mere puffery,” the court acknowledged the consumers’ allegations that BKC’s advertisements changed in 2017 to “materially overstate the size of its burgers” in comparison to previous years. The court highlighted that the consumers, “in short, aren’t just arguing that BKC is exaggerating the quantity or quality of its products through common food-styling practices; they’re also alleging that these advertisements are misleading customers into believing that the size of BKC’s burgers has, in fact, increased since 2017—when it hasn’t.”

The court also found that the consumers’ allegations satisfied the Rule 9(b)’s heightened pleading standards. Under Rule 9(b), “a plaintiff bringing a claim sounding in fraud must allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Here the court found the consumers satisfied the requirements by specifying the misleading advertisements they viewed, when they viewed the ads (post-September 2017), where they viewed the ads (online, on TV and in-store), and Burger King’s role.

Breach of contract. With respect to the breach of contract claim, the court reaffirmed what it had previously found, that BKC’s “in-store ‘menu order boards’” could “become an offer if a ‘reasonable person’ would have thought that ‘the advertisement or solicitation was intended as an offer.’” BKC argued that the “present record” “no longer supports any premise that Plaintiffs, or anyone else, saw the cropped photo pasted into the SAC without any accompanying context, or that the photo ‘promised’ more beef than the guest would receive.” The court disagreed and affirmed that the consumers’ breach-of-contract claim remains viable because they allege that the food they received didn’t “resemble the images on Burger King’s store ordering board.”

Negligent misrepresentation. The court also reaffirmed that the claim of negligent misrepresentation can survive Burger King’s motion to dismiss. The court indicated that the consumers “have stated a viable negligent-misrepresentation claim.” In the court’s prior order, it found that BKC’s “oversized images of the burgers”—which the Plaintiffs “saw online, on TV, and on Burger King’s menu-ordering boards”—could constitute an actionable misrepresentation under Florida law.

Unjust enrichment. The court also concluded that the claim for unjust enrichment can proceed. Burger King argued that the consumers received the benefit of their bargain—that “BKC provided adequate consideration for the money they paid”—so their unjust-enrichment claim fails as a matter of law. Although the court indicated that it was a close call, as the consumers conceded that they received some consideration for what they paid BKC, the court indicated that there’s still an open question as to whether this consideration was “adequate” in light of BKC’s allegedly misleading advertisements.

The Case is No. 1:22-cv-20925-RKA.

Judge: Altman, R.

Attorneys: James C. Kelly (The Russo Firm) for Walter Coleman. Michael D. Joblove (Venable LLP) for Burger King Corp.

Companies: Burger King Corp.

Cases: Advertising FloridaNews GCNNews