On Friday, a U.S. judge denied Burger King‘s plea to dismiss a class action lawsuit that alleges “unfair” and “deceptive” practices by the company in relation to the advertisements of the Whopper, which the plaintiffs not only claim is larger, but contains “more than double the meat” than the actual burger.
The class action lawsuit was originally filed in 2022 in the Southern District of Florida by plaintiffs claiming that the burgers were purchased based on the advertisements, but the Whopper seen in pictures is 35% larger than what consumers receive in real life. The plaintiffs are residents of or bought Whoppers in 12 different states across the U.S.
Burger King filed a motion to dismiss the suit in August, stating it “makes very clear how much beef the Whopper contains.” But in the verdict, U.S. District Judge Roy Altman of the Southern District of Florida is allowing the suit to proceed, concluding that it should be up to the jurors to determine “what reasonable people think.”
However, parts of the company’s dismissal were approved, such as the plaintiff’s claims related to television and online advertisements, as none of them explicitly promised a specific “size” or weight of the patty, according to court documents.
The case now relates to Burger King’s in-store menus and ordering boards, which also contain the alleged deceptive images of the Whopper the plaintiffs claim to have relied on when ordering.
The fast food chain states that it clearly discloses the size of its burgers and the amount of beef on its website. It also argues that food advertisements are designed to look as “appetizing as possible,” and that most consumers are “aware” of the practice.
“That is hardly news; reasonable consumers viewing food advertising know it innately,” Burger King wrote in its motion for dismissal. “This lawsuit unreasonably pretends otherwise.”
Related: Florida Burger King to Pay $8 Million to Customer Who Slipped and Fell in Restaurant Bathroom
Last month, Taco Bell faced a similar lawsuit wherein consumers sued the company over claims that the giant’s Crunchwraps and Mexican pizzas were advertised as having “at least double” the amount of filling than actually given. The litigation is still pending, but the plaintiffs seek at least $5 million in damages.
This story originally appeared on Entrepreneur
