Impossible Whopper Sales can Continue, Court Holds

The Southern District of Florida ruled in favor of Burger King Corporation on Monday stating that it could continue advertising the “Impossible Whopper” as a meatless burger. Judge Raag Singhal said the plaintiffs presumed that the Impossible Whopper was cooked apart from other hamburgers, which was not part of the advertised contract. The order said the plaintiffs could have requested their burger to be cooked separately and “had it their way,” as Burger King’s slogan states.

“Plaintiffs argue Burger King’s advertisement promised more than a non-meat patty. Further, Plaintiffs argue it is too early to make such a determination at this stage of the proceedings. This Court cannot agree. Burger King promised a non-meat patty and delivered with the ‘Impossible Burger,’” the order stated.

The “Impossible” meat in the product, produced by Impossible Foods, uses a vegan meat substitute, and is, according to the complaint, “one of the most popular vegan meat alternatives in the country.” The Impossible meats also conform to Halal and Kosher diets. Burger King began selling the “Impossible” Whopper in April 2019 to address a growing market for vegetarian foods.

The fast food restaurant claimed that the burger was “‘0% beef’ and ‘100% Whopper,’” but cooking the patty on the same grills as traditional meat patties called into question whether it could still be considered meatless. Burger King did not claim or advertise that the burger was vegan, and the company claimed it never said the burger would be cooked separately.

“Plaintiffs could not have had an objectively reasonable belief that it would unless specifically requested by a patron when placing an order. Plaintiffs admit they did not ask about the cooking method nor did they request an alternate method of preparation to satisfy their unique dietary requirements,” the order said. 

The case was initiated by Phillip Williams who claimed in a class action complaint that marketing and selling the burger as a meatless burger was misleading because the burgers are cooked on the same grill as Burger King’s other hamburgers. Williams claimed that he and other vegan consumers purchased the Impossible Whopper and assumed reasonably that the burger would also be prepared in a way that “maintained its qualities as a vegan” burger. He said that he was “duped by Burger King’s deceptive practices into eating a meat-free Whopper Patty that was in fact covered in meat by-products.”

Plaintiff Williams argued that he and other consumers would have not purchased the burgers if they were aware of how it was cooked, and that they paid more for the Impossible Burger, but did not get the value they were paying for, because it was not completely meat-free as claimed. He stated that there are “numerous consumer complaints” online from consumers who learned about the cooking practices. 

The plaintiffs are represented by McGuire Law and David Patrick Healy Law. Burger King Corporation is represented by Genovese Joblove & Battista.