In Walter Coleman, et al. v. Burger King Corp., No. 22-20925 (S.D. Fla.), a putative class of consumers from thirteen states alleges that Burger King’s advertising for items such as the Whopper materially exaggerates portion sizes, making the burgers appear up to 35% larger than they actually are. Plaintiffs claim that since 2017, Burger King’s marketing has depicted patties protruding beyond the buns—imagery they say misleads consumers into believing the product has increased in size when it has not. The second amended complaint asserts fourteen counts: violations of consumer-protection laws in eleven states (including Florida, California, and
New York) plus Florida common-law claims for breach of contract, negligent misrepresentation, and unjust enrichment. The plaintiffs seek damages, restitution, injunctive relief, and attorneys’ fees for a nationwide class and state subclasses.
On May 5, 2025, Judge Roy K. Altman denied
Burger King’s motion to dismiss in its entirety. Applying the “reasonable consumer” standard under Florida’s Deceptive and Unfair Trade Practices Act (and equivalent standards in other states), the court held that the alleged depictions could plausibly mislead consumers, going beyond permissible “puffery.” The breach of contract claim survived because in-store menu boards could be construed as contractual offers, negligent misrepresentation does not require a special relationship under Florida law, and unjust enrichment was a “close call” but adequately pleaded because plaintiffs alleged they purchased the products solely due to the challenged advertising.
A Broader Litigation Trend
Coleman is part of a broader trend of courts scrutinizing product depictions when measurable attributes are allegedly overstated. In Brodsky v. Coca-Cola Co., 2022 WL 3586095 (S.D.N.Y.
Aug. 22, 2022), claims over “slack-fill” in beverage bottles survived dismissal under New York’s General Business Law. In contrast, Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016), involving partially filled lip balm tubes, was dismissed as immaterial to reasonable consumers. In Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), the Second Circuit allowed claims about “whole grain” labeling on Cheez-Its to proceed, finding that the labeling could mislead consumers despite other disclosures on the packaging. The emerging pattern indicates that where plaintiffs allege a quantifiable misrepresentation central to the purchase decision, courts are more willing to let claims proceed past the pleading stage.
The Regulatory Landscape
Enforcement risk is not limited to private lawsuits. A second Trump administration could reshape the FTC’s and DOJ’s false advertising enforcement priorities under statutes such as Section 5 of the FTC Act, 15 U.S.C. § 45, and the Lanham Act, 15 U.S.C. § 1125(a). While overall federal regulatory activity could contract in some sectors, political incentives may drive targeted consumer-protection actions, particularly in food labeling and marketing. For example, during the first Trump administration, the FTC pursued high-profile cases against supplement and weight-loss advertisers despite broader deregulation, signaling a willingness to act where consumer deception allegations were considered significant.
Practical Takeaways for Advertisers
Advertisers should ensure that product depictions match the physical goods in measurable ways and should account for how changes in marketing over time could be interpreted as misrepresentations. Industry norms for “puffery” generally will not shield depictions that imply factual changes in size, quantity, or other objective attributes. Aligning creative teams with compliance counsel early in the marketing process remains a cost-effective defense against both litigation and regulatory scrutiny.