Burger King Whopper is 4 ounces. A Wendy's (WEN) single is 4 ounces. The real question is, can you misrepresent a product in advertising? Everyone may know the product is not what it is claimed to be.

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However, does this relieve the seller of responsibility for misrepresentation? The ten and fifteen cent McDonald’s burgers were tiny at the time. The McDonalds Quarter Pounder weighs 4.25 ounces. Did McDonalds (MCD) brag of their size? or is it all in what you call it? What constitutes a Whopper?

Burger King can’t ignore customers’ beef over its Whopper size, qz.com, Diego Lasarte

Burger King (QSR) lost its bid to dismiss a lawsuit accusing the burger joint of exaggerating the size of its popular Whopper offering.

Roy Altman, a federal judge in Miami, said parts of the proposed class-action suit against the company could proceed. This includes the accusation that—on its in-store advertisements and menus—Burger King depicts its burgers looking 35% larger than they actually are. The suit also claims that, in reality, Whoppers have less than half the meat as advertised.

Altman also ruled that customers would be allowed to sue the company for unjust enrichment—or when a company illegally deprives consumers of their time and money—in addition to the violation of consumer protection laws. However, he dismissed the plaintiff’s complaint that its TV and online ads were misleading, stating that the company never promised burgers of a certain size in its digital marketing campaigns.

While the exact figure was not clear, the suit is requesting “monetary damages fully compensating all individuals who were deceived by [Burger King] as a result of purchasing [its] Overstated Menu Items.”

Burger King admits it exaggerates in its advertising

Burger King was not immediately available for comment regarding the judge’s decision. In the fast-food chain’s original motion to dismiss, lawyers for the burger joint said exaggerations are an inherent part of the advertising business. Representatives for Burger King wrote.

“Food in advertisements is and always has been styled to make it look as appetizing as possible. That is hardly news; reasonable consumers viewing food advertising know it innately. This lawsuit unreasonably pretends otherwise.”

This issue is not limited to Burger King. Rival fast-food giants McDonald’s and Wendy’s were sued last year in a New York federal court over burger size in an ongoing class-action lawsuit. And last month, Taco Bell was sued for exaggerating the amount of meat in the Crunchwrap Supreme, amongst other offerings. The plaintiffs in those lawsuits are being represented by the same lawyers that are arguing the claims against Burger King.

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