Is Burger King selling you a Whopper of a tale? A juicy class action lawsuit filed in March 2023 alleges that the fast-food chain’s signature hamburger contains 35% less meat than the company’s ads suggest. On August 23, a federal judge in Florida allowed the lawsuit, Coleman et al v. Burger King Corporation, to move forward based on the company’s in-store marketing and menus. Filled with mouthwatering legal issues, the Burger King case is one of several class action suits filed by the same law firm, including similar cases against Arby’s, McDonald’s, Taco Bell, and Wendy’s, each alleging that the fast-food purveyors falsely represented the size of their meat-based products.
Intellectual property expert Louis Tompros, a lecturer on law at Harvard and a partner at WilmerHale, says that class action false advertising lawsuits often, but not always, play an important role in compensating consumers and preventing companies from committing further harm. In a recent conversation, Tompros discussed the Burger King lawsuit, how class action lawsuits work, and the legal concept of “puffery” in advertising.
Harvard Law Today: At first glance, what is your impression of the case?
Louis Tompros: It’s a very interesting case and falls into a general category of false advertising class actions. Sometimes, consumer product class action cases serve an important purpose to keep advertising honest. Other times, the cases are a little bit more opportunistic, and have more to do with going after big pockets. This is an interesting one, because it involves advertising that is on the line between a pretty clear factual statement, and something that’s not a factual statement. If what Burger King was doing was falsely stating how many pounds of meat went into each burger, it’d be a straightforward false advertising claim. And you would imagine that Burger King would settle very quickly if the claims were false, or they would fight to the end if, in fact, the claims were true. What makes this interesting is that the claim that Burger King is making in its advertisement is fuzzier as to whether it really is or is not a factual claim. And it’s those kinds of cases, where the advertisement is somewhere between a clear factual claim and pure puffery, where you find some of the most interesting cases.
It reminds me of the Red Bull case from roughly 10 years ago. Red Bull had used the slogan “Red Bull gives you wings,” and a class action was brought against them, saying that people had been drinking Red Bull for a long time and never got actual wings. Ultimately, Red Bull settled that case for a very significant amount of money. That was interesting, as well, because “Red Bull gives you wings” is one of these factual statements that most people would think is a metaphor, and it was therefore on the line between a clearly provable, relevant, factual statement and one that is not so.
HLT: Now that the judge has restricted this to in-store advertising, could Burger King argue that the plaintiffs had already decided to go to and enter the restaurant, so they were clearly planning to make a purchase before they had a chance to be influenced?
Tompros: The plaintiffs will have to convince a jury that they were standing there in the store, they looked at the picture on the menu, and if the picture on the menu had shown the burger with the size of meat that it actually had, they would not have bought that burger. They don’t have to prove that the person would have walked out of the store, only that the person wouldn’t have bought that specific burger. Deciding what the truth is will be up to the jury.
“The plaintiffs will have to convince a jury that they were standing there in the store, they looked at the picture on the menu, and if the picture on the menu had shown the burger with the size of meat that it actually had, they would not have bought that burger.”
HLT: Would it matter if the plaintiffs had purchased the burgers before, and therefore had some foreknowledge of their actual size, regardless of the advertising?
Tompros: There’s a variety of different claims in this lawsuit, the two most prominent being false advertising and breach of contract. For the false advertising claim, it may matter if the customers had previously seen the same picture and bought the burgers, because that would tend to show that they were not deceived in a way that affected their purchasing decision. So, if you’re telling me that this burger that has a certain amount meat, and I buy it, I get the burger, and it has a smaller amount of meat, then I go back and I buy it again and again, by the 10th or 12th time, I know that the picture does not look like what I’m going to get. And so, it’s wrong for me to say that that picture influenced my purchasing decision.
In the contract case, what the plaintiffs will have to show is that the picture operated as an offer, that the offer was a very specific offer of a burger with a particular amount of meat, and that the customer accepted the offer by ordering and paying for it with that picture in front of them. If I were Burger King, and the same customer who saw the same picture bought the burger 10 different times in the past, I would argue that the contract, as informed by the party’s prior performance, did not include this larger amount of meat. So, yes, the fact that somebody bought one of these burgers before having seen the picture and didn’t complain about it may affect the outcome. It’s not dispositive. It just goes to their credibility when now they come in and say they wouldn’t have bought it if they had known that it was going to look like it did.
HLT: The supposed damage in this case for each plaintiff is less than the cost of one burger. Is there a minimum level of damage for which one can file a lawsuit?
Tompros: As a matter of principle, there’s no minimum amount that you can sue somebody for. That’s why we have things like small claims courts. You are allowed to bring a case for a small amount of money. But as a practical matter, it very often isn’t worth it, because the filing fees and the attorney’s fees often dwarf the value of the case. Usually, that means that when we’re talking about small amounts per customer, the case will need to involve a large number of people, which is why this case has been brought as a class action. Under the federal Class Action Fairness Act, most class actions must allege a total amount of harm of more than $5 million across the class. And the plaintiffs in this case did make that allegation. Another requirement is that there must be at least 100 people in the class, which the plaintiffs also allege.
One of the reasons why class actions exist is to address small amounts of harm affecting a large number of people. We want it to be possible to have some legal remedy for those harms. So, we have the class action procedure to allow for that. Just because something is not worth bringing the lawsuit over in an individual case, you don’t want to let somebody get away with doing it thousands and thousands, or even millions of times.
“One of the reasons why class actions exist is to address small amounts of harm affecting a large number of people.”
HLT: One of Burger King’s arguments is that everyone knows that “[f]ood in advertising is and always has been styled to make it look as appetizing as possible.” Where is the line between making a product as attractive as possible and false advertising?
Tompros: There is a concept in false advertising law known as puffery. Puffery is intended to attract more consumers rather than to intentionally deceive them about a fact. And, generally speaking, puffery is fine. Whereas intentional deception about a fact is false advertising and is improper. Let me give you a couple of examples. For decades, cereal companies have made advertisements where they show milk being poured into their cereal. If you actually pour milk into a bowl of cereal and try to film it, it doesn’t look very good because milk is kind of thin and it usually does gross things to the cereal. Those commercials for years have used glue instead of milk because it’s thicker and you get a gorgeous picture. Even in the context of fast food, there are photoshoots of burgers in which each sesame seed is very carefully glued on to the bun in a particular configuration to look very appetizing. And there are chemicals that look like water that are placed on the tomatoes to make them look like they’ve just been washed and are fresh and beautiful. And the cheese is sometimes replaced by icing or putty or something else.
So that kind of puffery has happened all the time. It is well established that it is not generally speaking false advertising, because false advertising has to convey a specific statement of fact. That’s why in the Burger King case, the plaintiffs are not alleging that the burger didn’t look generally like the photo, and they’re not alleging that the burger didn’t look as appetizing as the one in the photo. Both of those claims would have been rejected if Burger King had argued that the photos are just puffery. What the plaintiffs instead allege is a much more specific allegation that the ratio of meat and the size of meat to the rest of the burger was misrepresented. What the plaintiffs claim is that the photo was representing a fact about the size of the patty, and that that fact was false. And that’s the distinction here that matters.
“Puffery is intended to attract more consumers … generally speaking, puffery is fine. Whereas intentional deception about a fact is false advertising and is improper.”
HLT: What role do class action lawsuits play in the U.S. legal system?
Tompros: The fundamental purpose of class actions is to allow for the resolution of harms that happen in small amounts to a large number of people. And there have been some class actions that have been hugely important over the years. For example, the auto industry class actions of the 1970s were instrumental in making automobiles safer. And I think there’s general consensus that that was a good thing. They gave some financial redress to people who had been harmed. But more importantly, they resulted in the manufacture of safer automobiles and the auto industry taking more seriously things like recalls, because they know that they will be liable across the board for problems.
There have also been some class actions that have, in my view, been of somewhat questionable value. And here I think of, for example, the Red Bull class action from 2014, in which Red Bull did indeed change its advertising and no longer says “Red Bull gives you wings.” It’s not clear to me that that provided any real value to society or provided any real value to the consumers that were supposedly deceived. So, class action false advertising lawsuits can have incredibly important impacts on industry, the economy, and consumers. But they can also be a drain. And where you draw the line is the challenge.
HLT: It seems the biggest impact can be changing corporate behavior. What kind of redress do the plaintiffs typically receive?
Tompros: Class actions are often primarily about changing company behavior and creating a disincentive because of the need to pay out money when companies to engage in misleading or unsafe behavior. The named plaintiffs in class actions usually get somewhat better compensation as a result of being the named plaintiffs, as compared to unnamed individual class members. And so there is some advantage to those plaintiffs to being involved. Although many named plaintiffs want to be involved in class actions just to do the right thing and hold the defendant accountable. And, of course, as part of class action settlements or resolutions, there are almost always significant attorney’s fees involved. So, there’s a real incentive for class action law firms to bring consumer class actions because they are very well compensated, as they clearly should be in the cases that are meritorious and societally beneficial. But that also leaves room for, to put it bluntly, shenanigans, including overly aggressive class action lawsuits that don’t have a lot of merit and are driven by the lawyers and their desire for the fees rather than by a real, meritorious effort to hold a company accountable for harmful conduct. There are some class action cases where the lawyers probably were undercompensated for the amount of good that they were able to do based on the impact that the case had. But there are some where the case was really driven by the lawyers’ fees and were settled because the defendants would rather get rid of the litigation than spend more on their own attorneys’ fees defending against it.
HLT: On that note, do you think it is a coincidence that this lawsuit is being spearheaded by the same firm which is also involved in lawsuits against McDonald’s, Taco Bell, Wendy’s, and Arby’s, all alleging that the amount of meat in their food items is less than pictured in those companies’ ads?
Tompros: There are firms that specialize in class actions and they very much do drive the identification of potential class action plaintiffs and the filing of those suits. And they’re usually pretty forthright about it and advertise themselves. You may have seen late night TV ads that say, “Were you injured after taking X medication? If so, please call this firm.” The firms behind those ads are often looking for named plaintiffs for class action litigation. Usually, the law firms will identify what they perceive as a problem, and then hunt for people who have the receipts to be able to show that they were injured. So, it’s not surprising to me that the same firm has brought multiple cases of this nature against multiple different defendants. I’d be surprised if they hadn’t, quite honestly, because it takes a lot of expertise and a lot of experience to be able to bring these kinds of class actions.
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