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November 26, 2019 02:10 am

Vegan Sues Burger King For False Advertising, Alleging 'Impossible Whopper' Cooked With Beef Fat

A lawsuit filed in federal court claims that Burger King is falsely advertising that its "Impossible Whopper" is "100% Whopper, 0% beef." "[Phillip Williams, the plaintiff in the Florida lawsuit] says he is a vegan who purchased an Impossible Whopper because of that zero percent promise, only to learn later that the patty was cooked on the same broiler as regular meat burgers, and thus was actually 'coated in meat by-products.'" Stephen L. Carter writes in a Bloomberg column that courts used to be skeptical of cases like this, "but times may be changing." From the report: Now, I'm as quick as anybody to condemn frivolous litigation, but if the allegations are true, Williams might well have a case. Vibrant free markets rely on truthful advertising, at least when the advertising influences the purchase decision. If a consumer happens to be vegetarian or vegan (or even, like me, pesce-pollotarian), the claim that the Impossible Whopper contains no meat will be crucial to the choice whether to give the sandwich a try. Not long ago, courts turned skeptical eyes to arguments by vegans that they'd been snookered. Back in 2003, for instance, a California judge dismissed a lawsuit by a "strict ethical vegan" against the maker of a tuberculosis test that, according to the plaintiff, was said to be vegan-friendly but actually contained animal products. The plaintiff lost not because the claim was ridiculous, but because, according to the court, the class of "strict ethical vegans" was too small. A reasonably prudent seller, wrote the court, possessed "no duty to warn of the possibility of rare, idiosyncratic, hypersensitive, or unusual reactions to an otherwise safe and useful product." The court's reasoning is dated, the product of an era when veganism seemed quirky. No longer. According to a 2018 Gallup survey, some 3 percent of U.S. adults say they are vegan. Using current census data, this works out to around 7.6 million vegans. One doubts therefore that a present-day court would so blithely conclude that the class of those likely to be influenced by a claim of vegan content is small, or that its preferences are idiosyncratic. And, indeed, recent results have trended the other way. Puffery -- "a mere puff," as the courts used to say -- is an extravagant advertising claim made in a context where no reasonable consumer would take it to be a factual assertion. Exaggeration, hyperbole, and absurdity are often puffery's ingredients. (Think "service second to none" or "best-built car on the planet.") Had Burger King advertised its Impossible Whopper as containing "so little meat a vegan won't care," a court would certainly have deemed the claim puffery. But the statement that the sandwich contains "0% beef" isn't puffery; it's a clear and precise assertion about the existence of a fact. If it was foreseeable that the claim would encourage those who eat no meat to try the product, and if the claim turns out to be false, it should be actionable. Don't get me wrong. I'm not suggesting that the claim is actually false. As Impossible Foods has pointed out, the customer can ask Burger King to microwave the burger, thus avoiding any contamination with meat products. This proposition, if it turns out to have been properly advertised, might well allow the restaurant to avoid liability altogether. And let's not forget that the burden of proof rests on the plaintiff. Nevertheless, the lawsuit is potentially important.

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