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The Courts United States Advertising

Vegan Sues Burger King For False Advertising, Alleging 'Impossible Whopper' Cooked With Beef Fat (bloomberg.com) 350

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

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  • "pesce-pollotarian" (Score:5, Informative)

    by snikulin ( 889460 ) on Monday November 25, 2019 @09:25PM (#59455078)

    I learned a new word today!

    • Such constructions have been around since at least the early 1980s - when I was debating the morality of food choices in the Animal Rights Group. Horribly ugly words, invariably resulting in a long debate about what the word actually means. The simpler option that we eventually moved to for this group was "carnivores who restrict their meat consumption to fish and birds", which provides an adequate description without getting into the complex questions of why those restrictions have been applied, and any ev
    • by fahrbot-bot ( 874524 ) on Monday November 25, 2019 @09:43PM (#59455156)

      I learned a new word today!

      It's actually spelled, "pretentious".

    • So he only eats Joe Pesci?

  • by Fly Swatter ( 30498 ) on Monday November 25, 2019 @09:25PM (#59455082) Homepage
    I also hope he eats his burger with gloves, wouldn't want to get any human skin oil upon his vegan burger, he would have to sue himself.
  • I'm a vegetarian (Score:4, Informative)

    by ChoGGi ( 522069 ) <<gro.iggohc> <ta> <todhsals>> on Monday November 25, 2019 @09:29PM (#59455100) Homepage

    If a consumer happens to be vegetarian or vegan (or even, like me, pesce-pollotarian)

    I still eat chicken/beef stock, wouldn't eat this shit, but it's not like I'd go into burger king anyways.
    Vegetarian just means no meat, fried in the same broiler as actual beef wouldn't count as meat (to me).

    • by godrik ( 1287354 )

      Vegetarian just means no meat, fried in the same broiler as actual beef wouldn't count as meat (to me).

      Maybe to you. I know many vegetarians who would disagree with you.

    • Vegetarians who have had no meat fat in their diet for a long time will lose the ability to digest it properly. So, if enough of it gets snuck in their food, it will give them diarrhoea.

      If you regularly eat meat fat, this probably hasn't happened to you. But the risk of this happening gives vegetarians and vegans good reason to be strict about not allowing it in their food.

      • It seems like it would give them good reason to allow tiny amounts of meat in their diet, to maintain a minimal level of enzymes (?) to prevent getting diarrhoea/B12 deficiency unnecessarily.

    • Comment removed based on user account deletion
      • Clearly if it's cooked in beef fat it isn't vegan.

        It is not cooked in beef fat. That is a deliberate exaggeration.

        This is Burger King. They use a flame broiler. This isn't a deep fryer filled with beef fat. It's a series of rollers that propel a burger patty thru flames to cook it. There is vaporized beef grease in the air and on every surface -there is no way to avoid some amount of exposure.

  • by Gravis Zero ( 934156 ) on Monday November 25, 2019 @09:32PM (#59455112)

    The Impossible Whopper does meet the standards for "0% beef" despite having beef fat residue on it. You need only read the laws regarding Nutrition Facts labels to learn that if something has "0g" of something doesn't mean none. Laws regarding advertising are far more lenient as you can call something fruit juice without using fruit to make it (Seriously, the laws are very relaxed). They never claimed it was a vegan burger and hell, if they did they would probably still win the case because it's in the spirit of being vegan!

    There isn't going to be any change here, just another vegan announcing to the world that they are vegan.

    • by Anonymous Coward

      Their product page is a bit strange, I never noticed that tag line before.

      https://mobile.bk.com/menu-item/impossible-whopper [bk.com]

      At the top is:
      "100% Whopper, 0% beef"

      Right below is:
      "*For guests looking for a meat-free option, a non-broiler method of preparation is available upon request.. "

      Lower down yet is the standard disclaimer seen everywhere:
      "ALLERGENS: Egg, Soy, Wheat, Prepared on equipment used for products that contain soy."

      My first seeing of that page was about two weeks ago when checking what chains i

    • If it's the broiler that I'm thinking of then you're probably right. The amount of actual beef fat on the surface of the grill would be very minimal, we're only talking about cross-contamination from contact with the rungs that the burger sits on. It's not even a flat grill. I can't really support the case where a vegan claims they are somehow harmed from trace amounts of beef.
    • by rtb61 ( 674572 )

      How about this, the impossible burger ain't so impossible when it has been fried on a grilled beef flavoured surface, so that's where the flavour comes from, not so impossible after all ;D.

    • the statement that the sandwich contains "0% beef" isn't puffery

      I bet if you divide the mass of beef fat contaminant by the mass of the whole sandwich, you'd get something like 0.003 or 0.3%, and if you round that to the nearest percent, it would be 0%.

      So a fair defense would be that the food industry has never before been required to use that much precision -- tenths of a percent or less -- when advertising its products.

      • if you round that to the nearest percent, it would be 0%.

        This is how trans fat works. If a product has less than half a gram of trans fat per serving, they can legally advertise it as "0 grams trans fat".

        FDA regulations on trans fat [fda.gov]: The Nutrition Facts Label can state 0 g of trans fat if the food product contains less than 0.5 g of trans fat per serving.

        • by NFN_NLN ( 633283 )

          It's also how "lactose free" milk works. You only need to be below a threshold, not that you won't find ANY lactose in it.

    • The Impossible Whopper does meet the standards for "0% beef" despite having beef fat residue on it.

      More importantly, how can it be false advertising when the very first word is "Impossible" followed by other words. They said it was impossible!

    • The Impossible Whopper does meet the standards for "0% beef" despite having beef fat residue on it. You need only read the laws regarding Nutrition Facts labels to learn that if something has "0g" of something doesn't mean none. Laws regarding advertising are far more lenient as you can call something fruit juice without using fruit to make it (Seriously, the laws are very relaxed). They never claimed it was a vegan burger and hell, if they did they would probably still win the case because it's in the spirit of being vegan!

      There isn't going to be any change here, just another vegan announcing to the world that they are vegan.

      Everyone who has had one of these things knows that Burger King microwaves them anyway. Soooo, I doubt there is even any beef fat residue on it.

      • > Laws regarding advertising are far more lenient as you can call something fruit juice without using fruit to make it (Seriously, the laws are very relaxed).

        Quite the opposite. There is a reason one product is called "apple juice" and another is called "apple-flavored beverage". I have a can of "peanut and honey spread" here because "peanut butter" isn't allowed to contain honey etc.

        Actually juice has to use specific named varieties of fruit. You can't use just any type of orange and call it "orange j

    • by Powercntrl ( 458442 ) on Monday November 25, 2019 @11:35PM (#59455520) Homepage

      It's not even beef fat residue. The "broiler" Burger King uses is a metal conveyor belt, over gas flames. The crud that gets on your Impossible Burger could be more accurately described as cremated cow remains.

      If someone is going to get that bent out of shape out of eating a little bit of charcoal that used to be cow, it must take some serious mental gymnastics to rationalize patronizing a restaurant that primarily caters to carnivores, in the first place.

    • You need only read the laws regarding Nutrition Facts labels to learn that if something has "0g" of something doesn't mean none.

      I came here to say this. I buy some hydration tablets which claim, "Zero calories! 0g sugar!" But when you look at the nutritional information, there's actually something like 0.8 calories. Which, for a pint of liquid, is pretty close to zero; it's not exactly going to throw my blood sugar out of wack when fasting. Given that this is standard practice in the food industry, an

    • Laws regarding advertising are far more lenient as you can call something fruit juice without using fruit to make it

      Really? Hmm... All I could find on a quick Google was 21 CFR 101.30, which states pretty clearly that you have to label the percentage of juice in your product, and cannot call it fruit juice if it contains minimal fruit juice.

      https://www.accessdata.fda.gov... [fda.gov]

  • Beef? (Score:5, Funny)

    by gurps_npc ( 621217 ) on Monday November 25, 2019 @09:44PM (#59455160) Homepage

    They first have to prove that the regular burgers contain any beef before they can claim that vegie burgers are cooked in the remains of the 'beef' burgers.

  • Vegan? (Score:4, Insightful)

    by spitzak ( 4019 ) on Monday November 25, 2019 @09:44PM (#59455166) Homepage

    Vegans don't want to eat dairy products (eggs, milk, cheese) and for this reason are quite unlikely to want most items advertised as "vegetarian". I have no idea why this person would dare try the Impossible burger which has never claimed to be vegan, right?

  • Oh for fuck's sake, just throw the case out. Even the kashrut isn't that strict[*].

    That aside, my local BK sells the Impossible Burger, and it's pretty good, imho.

    [*] meat and dairy must have less than one part in 60 of one in the other, and only then by accident -- any more, or deliberate, is considered mixed.

  • by 140Mandak262Jamuna ( 970587 ) on Monday November 25, 2019 @09:48PM (#59455174) Journal
    We are (lacto) vegetarians. We always check with the waitstaff whether it will be cooked on the same skillet or fried in the same vat of oil. It is a strict no-no for us. We also verify chicken/vegetable stock in soups. We even request the gloves to be changed in Subway.

    They don't have to accommodate us, if it is fried in the same vat with meat products, then we choose a different dish. But we expect truth.

    Despite all the precautions we have taken, we are sure we had ingested some food contaminated with meat, but at least in our mind we are at peace having done the due diligence on our part.

    Truth be told, America has been a lot more vegetarian friendly than the India I grew up in. In USA they accept my preferences without question, and help when they could, and say sorry politely when they could not. In India many were hostile to my vegetarianism, inferring my caste from it and conflating it with many other political and religious issues.

    • The thing is massive and expensive, and gets cleaned every night. There would be no other way to cook the impossible burger. It would be taken off the menu if she wins... sucks.
  • This product was tested on animals [plantbasednews.org], which I think is much more troubling than where it's prepared, and has traditionally been a much bigger issue in the world of animal rights.

    As a long-time vegan, I think the lawsuit is pretty frivolous as well..if you're opposed to animal exploitation, you shouldn't be going to a place like BK in the first place.

    • by lgw ( 121541 )

      "Vegan Cyclist" you sound like the most annoying person on the planet, but you have one test left to achieve that goal: are you a furry?

  • by darthsilun ( 3993753 ) on Monday November 25, 2019 @09:52PM (#59455194)
    They absolutely reek. I don't know how you could walk into one and not emerge covered in a microscopic layer of grease.

    If you're vegetarian or vegan I don't know why you'd even go near the place.

    I also go to India frequently, and it seems like every trip there's a news story about a vegetarian who thinks they were served meat in a restaurant. I know people who are strict kosher too, and they eat vegetarian outside their home, just to be sure.

    Honestly, if you're vegetarian, and you don't want to eat meat, don't go to places that serve it. It's really the only way to be sure.
    • " If you're vegetarian or vegan I don't know why you'd even go near the place. "

      Shhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

      Don't give them any ideas. Next they'll be suing because the air they're breathing is tainted with " meat smell ".

      I imagine the smell of BBQ has a similar effect on Vegans that Garlic or Sunlight has on Vampires :|

    • by fred911 ( 83970 )

      ""If you're vegetarian or vegan I don't know why you'd even go near the place""

        I agree. Any real meat eater wouldn't accept what they attempt to pass off as food, as satisfying as properly prepared flesh.

    • The grease coating for the people cooking is very real. But I'm afraid that for most humans, salty grease tastes _good_. It's very high in calories, the grease carries scent and flavor very well.

  • Any burger is allowed 1 microgram of cockroach poop, 3 bits of fly wing and 4 skin flakes from a rat. I'm making these numbers up, but there are rules about acceptable levels of different contaminants. Absolutely no food is completely pure. That goes for the most expensive stuff that the purest vegans put in their bodies. There's still all sorts of animal parts in it, just in low amounts.

    Bk needs to prove that the contamination is below these levels. If they can do this, they probably win. On the other
  • by nehumanuscrede ( 624750 ) on Monday November 25, 2019 @10:03PM (#59455232)

    . . . has lost it's damned mind. :|

    Wait till people figure out that there is no Burger " King ".
    Nope. You heard it here first. No royalty what-so-ever.
    A - Complete - Sham

    Let loose the hounds of litigation !

  • by Cy Guy ( 56083 ) * on Monday November 25, 2019 @10:23PM (#59455286) Homepage Journal

    The Impossible Whopper launched nationally on Aug 8. On Aug 2, a week before that, this story ran nationally clearly saying that if you wanted a truly beef-free, vegan burger you had to specify you didn't want it broiled and that you didn't want mayo on it.

    https://www.today.com/food/new... [today.com]

    TODAY: Why Burger King's new Impossible Whopper isn't totally vegetarian

    "...unless you ask for the Impossible Whopper in a specific way, it might not meet your definition of true vegetarian fare. While the burger itself contains no meat, Burger King acknowledges that the Impossible patties are flame-grilled on the same broiler as its chicken and beef products."

  • by The_mad_linguist ( 1019680 ) on Monday November 25, 2019 @10:31PM (#59455316)

    The Alpha-Gal allergy makes you allergic to all mammal meats and dairy except for a few species of monkey.

    It is spread through tick bites, and the number of cases has been increasing, so even if you don't have it now, one walk in the woods and it's bye-bye-burgers.

  • Why are companies bothering to bend to the demands of those that cannot be pleased? Giving them an inch gives them permission to demand a mile.

    I heard that a college football game was delayed because a bunch of students sat on the field demanding that something be done about global warming. Why weren't these people immediately arrested? Why were they allowed to delay the game for an hour before they were taken off the field? These people are criminals and should be treated as such.

    Getting back to the issue at hand, where does Burger King claim that the "Impossible Burger" was cooked in a manner to keep it free from beef contamination? Why would such vegans going to a restaurant that cooks meat? This is the center of the case, they wouldn't go to such a restaurant except to take them to court.

    Keep this up, assholes, and soon nobody will bother to listen to you any more. All you did was telegraph to Burger King that vegans don't want to eat at their restaurants. I fully expect their vegan offerings to disappear from their menu.

  • by SilverJets ( 131916 ) on Monday November 25, 2019 @10:51PM (#59455374) Homepage

    Get violently ill? Accrue medical expenses? Lose wages due to time off work?

    No? Then STFU and eat your beet patty burger.

    • They are just narcissists. People should be grateful that food is readily available and someone is actually willing to cook it for you. The Western world has become so spoiled.

  • I tried an impossible whopper. Tasted like shit. Either a beef whopper or a black bean veggie burger would be vastly better.
  • and advertised as 0% beef, it is still a valid claim as 0.1 rounds to 0. If the claim was 0.0% beef, then the claim would be false.
  • 0% beef may sound like a blatant and unallowable lie but it is quite consistent with FDA labelling rules [readthedocs.io] Many, perhaps most "Zero calorie" foods actually have calories. The rule is that as long as they have fewer than five calories,they are allowed to claim zero. The most blatant case I know of is Splenda. It is advertised a zero calorie sweetener but the first two ingredients [squarespace-cdn.com] are maltodextrin and dextrose, two forms of glucose.

  • by DaveV1.0 ( 203135 ) on Tuesday November 26, 2019 @08:04AM (#59456406) Journal
    Fucking pieces of shit demand that the entire world revolve around them. You know what you call a thousand vegans chained together on the bottom of the ocean? A good start.
  • by Oligonicella ( 659917 ) on Tuesday November 26, 2019 @10:27AM (#59457210)
    Over and over and over and.....
  • by PPH ( 736903 ) on Tuesday November 26, 2019 @10:48AM (#59457360)

    ... that will satisfy vegans: promise to cook their Impossible burgers in 100% petrochemical-based grease.

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