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Burger King: Vegan’s ‘Impossible Whopper’ Stance Unreasonable

Jan. 31, 2020, 3:05 PM

Burger King Corp. urged a federal court in Florida to throw out a vegan’s proposed class suit over meat residue on “Impossible Whoppers,” saying no reasonable consumer would assume its plant-based patty was grilled separately from meat patties.

Phillip Williams, who says he thought he was getting a vegan sandwich by ordering the patty without mayonnaise, alleged Burger King deceptively promotes Impossible Whoppers as a meat-free option. The meat residue caused by the shared grill compromised his strict vegan principles, he said.

But Burger King didn’t say or imply that the the “Impossible” Whopper is vegan and would be cooked on a different flame broiler than the one used to cook beef patties and chicken, the company said in a filing to the U.S. District Court for the Southern District of Florida.

Burger King couldn’t have marketed the Impossible Whopper as being “vegan,” the company said; the sandwich in its standard form comes with mayonnaise.

“A reasonable Burger King guest” who orders an Impossible Whopper, but wouldn’t want it cooked on the same grill as a beef patty, “should ask about the cooking method, which Mr. Williams admits he did not,” the company’s motion said.

Burger King stated on its website and elsewhere, and major media outlets widely reported, that guests may request an alternative cooking method if they don’t want the Impossible Whopper cooked on the same flame broiler used for beef and chicken, the company said.

The “smallest amount of investigation” would have given Williams this information. He can’t base deception claims on his “asserted but unreasonable ignorance,” Burger King said.

Even if Williams could state a claim himself, he can’t represent a class of all Impossible Whopper customers because he isn’t a typical purchaser, Burger King said.

Burger King said it “recognizes that only rare class action claims are so flawed as to be subject to rejection at the pleading stage. This, however, is just such a case,” it told the court.

Dudley, Sellers, Healy, Heath & Desmond PLLC represents the plaintiffs. Drinker Biddle & Reath LLP and Genovese Joblove & Battista P.A. represent Burger King.

The case is Williams v. Burger King Corp, S.D. Fla., No. 1:19-cv-24755, motion 1/30/20.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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