Burger King has spent so many years in the shadow of McDonald’s that it is a surprise it exists at all. It certainly will have trouble increasing its sales if the food it makes does not match what is advertised about that food. According to Reuters, which often catches these absurd stories, Burger King has been sued because its Whopper sandwich is too small. The suit spells the charge out in detail. (Here is the most popular fast-food chain in each state.)
The problem Burger King has is that the suit is a class action one. It cannot hide from one individual. The claim starts with the pictures of Whoppers in its stores. These pictures show Whoppers that “overflow over the bun.” The ones served are allegedly smaller. The pictures make the Whopper seem 35% larger than it is, according to the allegation.
Burger King’s headquarters has a powerful counter. Its burgers do not have to be as large as the ones in the picture. In his infinite wisdom, U.S. District Judge Roy Altman ruled that a jury will “tell us what reasonable people think.”
McDonald’s size has not allowed it to ward off similar claims. It faces one in Brooklyn, along with Wendy’s.
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Fast-food chains face an odd kind of liability. Few other industries have the problem of how a product compares to an illustration. It has not happened in the car industry. iPhone pictures are rarely seen as different from real iPhones. American Express cards may be smaller than they are in advertisements. However, the real ones function better than those in the pictures.
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Burger King may lose the suit. It will have to make the Whoppers in its photos smaller. It is too soon to tell if that will eat into sales.
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