Burger King will face legal action claiming its Whoppers are too small

Customers argued in-store pictures make the Whoppers look 35 percent bigger than they actually are

Burger King must defend against a claim that its depiction of Whoppers on in-store menu boards is misleading for reasonable customers, resulting in a breach of contract, said US District Judge Roy Altman in Miami.

The customers who brought forward the lawsuit accuse the chain of portraying the Whoppers with ingredients that "overflow the bun," therefore making the burger appear 35 percent bigger and containing double the meat than they actually do when served.

Burger King had made a bid to dismiss the class action, arguing that it wasn't required to deliver burgers that look "exactly like the picture."

However, the judge rejected this, saying in his decision that it was up to jurors to "tell us what reasonable people think," Reuters reports.

Altman also let the customers pursue negligence-based and unjust enrichment claims.

The lawsuit only applies to in-store adverts and depictions of Whoppers. The judge dismissed claims based on TV and online adverts, on the basis that none could be found in which Burger King promised "size," or patty weight, and failed to deliver it.

Burger King and their lawyers have not yet responded to requests for comment on Tuesday. 

This isn't the only lawsuit of its type going on in the US, with McDonald's and Wendy's defending against similar claims in the Brooklyn, New York federal court.

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