Pizza Chain Gag Order Leaves a Bad Taste

By Michael Fumento

The Washington Times, February 18, 2000
Copyright 2000 The Washington Times

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Lest there have been any doubt before, it’s now clear that free speech applies more to pornography than pizza. A Texas federal judge has declared that the Papa John’s 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. What’s 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!"

Lawyers for Papa John’s, the nation’s 4th largest pizza chain, argued that the slogan was mere boasting, known legally as "puffery." Pizza Hut, the largest pizza chain, made it sound like the slogan was comparing Papa John’s pizza to itself. But those four words are so ambiguous they might mean nothing more than "better" than a cheap store-bought pizza.

Barring a successful appeal, Papa John’s 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 nation’s 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 it’s "Made from the best stuff on earth."

In the pizza world there’s Pizza Inn’s "Best Pizza Ever," Mr. Gatti’s "Best Pizza in Town," and the slogan "The Best Pizzas Under One Roof." That last one belongs to guess whom? Pizza Hut. It’s 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 Pandora’s 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 John’s 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 it’s true?"

That’s one good reason puffery is allowed — we don’t want judges or juries comparing state attributes for lovers or any more than we want them determining whose dough is doughier. The folks at Frito-Lay don’t really feel about their potato chips that "You can’t eat just one," nor does the law oblige them to prove it.

In addition to keeping the law from comparing one chain’s anchovies to another, the puffery rule also prevents costly and pointless litigation. It helps explain why Ferrari and Porsche haven’t challenged BMW’s slogan of "The Ultimate Driving Machine" and why nobody goes to court claiming, "I’m somebody who doesn’t 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 John’s has also won the coveted Restaurants and Institutions magazine "Choice in Chains" survey based on overall quality and customer satisfaction.

Pizza Hut thought PJ’s was getting too big a pizza the action.

Pizza Hut was also incensed with Papa John’s ads featuring Pizza Hut co-founder Frank Carney, who has since switched sides and now owns 70 Papa John’s outlets. In those adds he declares,
"Sorry guys, I found a better pizza."

Twice Pizza Hut took misleading advertising claims against Papa John’s to the National Advertising Division of the Better Business Bureau, as did Domino’s, the nation’s second-largest pizza chain. Papa John’s emerged victorious all four times.

Pizza Hut could then have fought back the old-fashioned American way with better service, better advertising, or, here’s an idea, a truly superior product. Instead it chose the new-fashioned American way. Litigation.

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Read Michael Fumento’s additional work on laws and legislation and on economics.