Burger King telling Whoppers about its Whopper

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Burger King telling Whoppers about its Whopper

According to Forbes, “Burger King has been told it must defend itself in court against claims its signature Whopper burgers are too small…”.

On first read of this article, I laughed.  I thought, “wow, that plaintiff must be hungry”. Then I thought, maybe that plaintiff is just irritated that he was not getting what he paid for.  Then I thought, what does it say about a society that is litigating the size of a hamburger?



From a criminal law perspective, fraud occurs whenever someone is deprived by deceit, falsehood or other fraudulent means.

I suppose that if Burger King is selling undersized Whoppers misrepresented as being more gargantuan than they really are, that is a kind of fraud. After all, if true, the financial and dietary interests of its customers are put at risk. I supposed it doesn’t matter that I think a great many Burger King patrons probably don’t need the extra calories; for if you pay for it, you should get what’s advertised. What is advertised appears delicious.

As reported by Forbes:

The lawsuit claims the company’s luxe depiction—including a meatier patty and ingredients that “overflow over the bun”—makes the Whopper appear to be 35% larger and contain double the amount of meat than what customers are actually served.


I understand the judge dismissed “claims based on TV and online ads, finding none in which Burger King promised a burger "size," or patty weight, and failed to deliver it”, but forced the hamburger chain to defend its representations with respect to its in-store message boards.


I was surprised to learn that Burger King was not the only outlet sued for delivering less than advertised. 

According to Reuters,

Taco Bell, a unit of Yum Brands (YUM.N), was sued last month in the Brooklyn court for selling Crunchwraps and Mexican pizzas that allegedly contain only half as much filling as advertised.

Apparently McDonalds and Wendys are also in court defending the size of their delicious delights. 

As reported by Reuters, these lawsuits are apparently seeking 5 million dollars in damages. Yes, that’s six zeros ($5,000,000), not to mention a higher a risk of diabetes. 


Even in Canada things are becoming more litigious.  Notwithstanding that it’s easy to make light (pun intended) of the Hungry-man’s claim against these fast-food chains, I think it is important to highlight that companies do have a responsibility to make best efforts to deliver what they represent. To be fair, I accept that delivering as advertised is not always possible, but if the company has misrepresented to the customer in favour of reducing the quality and quantity of its product so that it can bolster its bottom-line, that’s a problem.  However, is it a problem that should strain the limited resources of courts or simply be decided by customers in a free market economy.  In short, if Burger King (or any business) isn’t giving you what you want, don’t go there.


It strikes me that in our society that we have come to expect a level of misrepresentation or fraud.

Think about it.

Politicians make promises during every election, many of which they don’t even attempt to keep. Yet they still got your vote. Employees take longer lunches, come in late, pilfer a few highlighters and then leave early, but still collect a full paycheque.  Many companies, not only fast-food chains, fail to deliver their product as advertised to customers.  At least one company fraudulently used technology to fool regulators. Remember the Volkswagen scandal in 2015, dubbed the “diesel dupe”.

In September, the Environmental Protection Agency (EPA) found that many VW cars being sold in America had a "defeat device" - or software - in diesel engines that could detect when they were being tested, changing the performance accordingly to improve results. The German car giant has since admitted cheating emissions tests in the US.


I am not sure how the plaintiffs in the fast-food lawsuits propose to justify 5-million dollars in damages.  I suspect the 5-million dollar number is also artificially inflated for the purpose of driving settlement or a higher damage award from the court.  If so, isn’t that also a grift?  Regardless, what’s the hamburger eaters argument, “I went into the restaurant and was served a dish that didn’t look like the picture, so pay me 5 million dollars”? 

I am in the wrong line of work.


Maybe Burger King didn’t deliver a Whopper that looked like the picture. Maybe Taco Bell underfilled a Crunchwrap?  Maybe the plaintiffs in all of these lawsuits are trying to be unjustly enriched when they should just send a message by refusing to patronize these businesses.  It seems to me that no matter where you look, the grift is on. 

My concern is about using valuable Court resources to hear absurd claims when they should be used to hear real issues.  When the Court is too busy mediating the absurd, they might not have time to resolve what is necessary.

In life, we sometimes just have to be grownups, who take responsibility by doing honest grown-up things. If this means that one must stop eating at Burger King because its telling Whopper lies -- Whoppers about its Whopper -- so be it.

I don’t know about you, but I’m hungry.


David Chow

Calgary Criminal Defence Lawyer


David Chow has witnessed the evolution of criminal law and the courts since his first case in 1999.  Over the last two decades, litigating all cases, including criminal law cases has become more labour intensive -- often unnecessarily so.  The process in criminal law can be daunting for experienced defence counsel. If this is so, one can only imagine that it's overwhelming for the unrepresented accused. You don't have to defend your case all alone. Call an experienced and qualified criminal defence lawyer for legal assistance.