Burger King Has Its Way: Vegan Whopper Class Action Suit Dismissed

Morgan Lewis - Well Done

Morgan Lewis - Well Done

In an order issued on July 20, Judge Raag Singhal of the US District Court for the Southern District of Florida dismissed a class action lawsuit that claimed Burger King Corporation’s advertising deceived customers by making a “presumption” that its plant-based “Impossible Whopper” patties would be cooked on different grills than those used to cook meats. Williams v. Burger King Corp., Case No. 1:19-cv-24755 (S.D. Fla. July 20, 2020).

Specifically, the plaintiffs alleged to have been “duped” into believing that Burger King cooked its Impossible Whopper patties on dedicated grills due to the patties being marketed as “0% beef and 100% Whopper.” The plaintiffs had previously argued that Burger King marketed the Impossible Whopper as vegan, but then dropped that claim given that Burger King’s advertising did not expressly mention that the Impossible Whopper was in fact vegan.

In dismissing the plaintiffs’ breach of contract claim, Judge Singhal held that Burger King’s promotional material did not mislead customers about cooking methods and that it did not imply that its plant-based patties would be grilled separately from meat products. In the order, Judge Singhal used Burger King’s famous slogan to justify his conclusion: “Plaintiffs could have ‘Had it [their] way’ by requesting a different cooking method, thereby altering the terms of the contract.” He added that “Burger King promised a non-meat patty and delivered with the ‘Impossible Whopper.’”

While Judge Singhal dismissed the breach of contract claim without prejudice, he permanently dismissed a claim for unjust enrichment because “the existence of a contractual relationship between the parties typically precludes an unjust enrichment claim arising out of a contract.” Judge Singhal also dismissed claims under consumer fraud laws, holding that the plaintiffs could not have had an “objectively reasonable belief” that the Impossible Whopper patties were cooked any differently than other burgers unless specifically requested when placing an order. Judge Singhal also found that the plaintiffs could not bring a class action suit because their claims were too individualized to support class certifications.

In the end, this was a key win for restaurants and marketers of plant-based meat alternatives, which have been the subject of recent popular and regulatory attention. At least in a restaurant setting, if a customer wants a plant-based meat alternative cooked on a separate surface from other meat products, they need to speak up—and not assume that plant-based meat alternatives are processed and prepared (or do not share equipment) with meat products.

The court agreed with Burger King that it never promised consumers it would cook the Impossible Whopper on a separate surface, and the plaintiffs “could not have had an objectively reasonable belief that it would unless specifically requested by a patron when placing an order.”

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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