Plaintiffs filed a class-action suit in New York and Florida, alleging that fast-food chain Burger King misrepresented the size and composition of hamburgers. How might consumer perception research be used in false advertising proceedings?
False Advertising Allegations
In 2022, a proposed class of plaintiffs filed a complaint in the U.S. District Court for the Southern District of Florida, alleging that Burger King’s advertising overstated the size of its burgers. The complaint alleged that on board menu advertisements depicted burgers whose meat and toppings were in different proportions than what consumers received at the point of sale. It also claimed that the advertised burgers appeared approximately 35 percent larger.
Burger King argued that the quantity of ingredients in its burgers has remained consistent, and that its advertising clearly discloses the amount of beef in a Whopper, specifically, a quarter-pound patty per sandwich. It moved to dismiss the complaint.
Ruling
The court dismissed some of the plaintiffs’ claims, while allowing claims for breach of contract related to Burger King’s in-store menu boards, negligent misrepresentation, and unjust enrichment. A remaining issue was whether Burger King’s advertising and a consumer’s subsequent purchase form an enforceable contract, and if so, whether the size of the burger constitutes an “essential term” of that contract.
The court emphasized the role of consumer perception, stating: “Who are we to decide whether the seemingly substantial difference between what was promised and what was sold was (or was not) enough to alter the purchasing preferences of reasonable American consumers? Far better … to leave that determination to the consumers themselves.”
These claims may require consumer perception evidence of how reasonable consumers interpret advertising imagery, and whether those interpretations influenced purchasing decisions.
Consumer Survey Evidence
When issues arise that require measures of what reasonable consumers believe, parties often introduce survey research evidence. Cases involving allegedly false or misleading advertising frequently require measures of how consumers interpret messages conveyed by visual depictions, packaging, and marketing communications. Survey research could assess consumer expectations relating to Burger King’s representation of a specific burger size or quantity of ingredients, and whether the perception influenced purchasing decisions.
IMS Legal Strategies designs, executes, and testifies in false and deceptive advertising disputes where issues of consumer perception exist. Contact IMS to support or defend against false advertising claims.
Note: This case is open.
