Lest there have been any doubt before, its now clear that free speech applies more to pornography than pizza. A Texas federal judge has declared that the Papa Johns pizza chain must abandon its slogan "Better Ingredients. Better Pizza." He also awarded the plaintiff, Pizza Hut, almost half a million dollars.
So doing, Magistrate William Sanderson Jr. set a precedent that goes beyond dough, as in dollars, or dough, as in pizza. Whats at stake is an infringement of free commercial speech and a push towards making America — as if it were possible — an even more litigious society.
"That judge has really flipped!"
Barring a successful appeal, Papa Johns will have to remove the slogan from its advertising and everything from delivery boxes to stationery to aprons. In all, it was quite a coup for the nations largest pizza maker against its fast-growing competitor in what the media have dubbed "Pizza Wars" but Pizza Hut had internally called "Stoppa the Papa."
"This is a landmark victory for consumers as much as it is for Pizza Hut," crowed Pizza Hut President Michael Rawlings. To the contrary, consumers have gained nothing and Pizza Hut may find itself the winner of a pyrrhic victory.
Sanderson, in upholding an earlier jury verdict, virtually ignored the puffery claim, yet puffery is ubiquitous in advertising and no more so than with food. Essentially, it calls attention to a product in a pleasant, catchy way. Burger King claims "It just tastes better," while Snapple brags its "Made from the best stuff on earth."
In the pizza world theres Pizza Inns "Best Pizza Ever," Mr. Gattis "Best Pizza in Town," and the slogan "The Best Pizzas Under One Roof." That last one belongs to guess whom? Pizza Hut. Its also used the slogans: "Better Recipes, Better Choices," and "The Better Pizza is at Pizza Hut" — clearly a slap at rivals.
As to the "victory for consumers," Dan Troy, a constitutional law expert who has written extensively on advertising, says the ruling insults them and "suppresses the role of discourse." If allowed to stand and followed by other courts, says Troy, a Washington, D.C. attorney, it "will force claims to go to a level of generality that is not helpful to the consumer. If you believe that advertising is generally informative, we want people communicating as much and as broadly as possible."
This ruling will clearly have a chilling effect on advertisers, forcing them to become needlessly cautious. "This opens a Pandoras Box of suing over tag lines," says Jeff Edelstein, a New York attorney who helped write the puffery section of the Uniform Commercial Code (UCC), a set of legal standards adopted in virtually every state. (Edelstein has worked for Papa Johns but did not represent it in the Pizza Hut case.)
What of other slogans, like "Virginia is for lovers," asks Ronald Rotunda, a professor of constitutional law at the University of Illinois College of Law in Champaign. "Are we going to have 49 other states lining up on the federal dockets demanding that Virginia prove it and a judge deciding whether its true?"
In addition to keeping the law from comparing one chains anchovies to another, the puffery rule also prevents costly and pointless litigation. It helps explain why Ferrari and Porsche havent challenged BMWs slogan of "The Ultimate Driving Machine" and why nobody goes to court claiming, "Im somebody who doesnt like Sara Lee."
There were efforts just a few years ago to greatly restrict the UCC allowance for puffery, but they were explicitly rejected. Advertisers remain liable for harms caused by genuinely misleading advertising, but mere attention-grabbing slogans are off-limits. Or were until now.
Ultimately, what we have here is a 300-pound gorilla that became terrified of a fast-growing upstart (about 2,300 outlets, up from just 400 in 1993). For the last three years, Papa Johns has also won the coveted Restaurants and Institutions magazine "Choice in Chains" survey based on overall quality and customer satisfaction.
Pizza Hut thought PJs was getting too big a pizza the action.
"Sorry guys, I found a better pizza."
Twice Pizza Hut took misleading advertising claims against Papa Johns to the National Advertising Division of the Better Business Bureau, as did Dominos, the nations second-largest pizza chain. Papa Johns emerged victorious all four times.
Pizza Hut could then have fought back the old-fashioned American way with better service, better advertising, or, heres an idea, a truly superior product. Instead it chose the new-fashioned American way. Litigation.