- The Washington Times - Tuesday, January 18, 2000

Henry Ford had a "better idea." Things went "better" with Coke. But Papa John's can't claim "Better Ingredients. Better Pizza"? Not according to federal Judge William F. Sanderson Jr., who just ordered Papa John's to stop using the word "better" to describe its pizza.

Pizza Hut sued Papa John's over "Better Pizza. Better Ingredients" after losing before Better Business Bureau arbitrators in March 1998. After hearing testimony about pizza sauce and dough last fall, a U.S. District Court jury decided that Papa John's misled consumers with its slogan. The jury also found that Pizza Hut misled consumers with advertising claiming that Papa John's used old dough.

Judge Sanderson's ruling awarded $468,000 in damages to Pizza Hut and gives Papa John's until April to cease all use of "Better Ingredients, Better Pizza" a slogan used for the past four years as part of a $300 million advertising campaign.

The hypocrisy is breathtaking. Pizza Hut will be able to continue using its slogan, "Best Pizzas Under One Roof." A Pizza Hut spokesman said the difference between its slogan and Papa John's is that Papa John's ads compare its product with others and claim superiority. He said Pizza Hut made no such comparisons reasoning that only President Clinton could embrace. I guess it depends on what the meaning of "best" is.

The monetary damages are trivial. The U.S. pizza business is $22 billion in size. Pizza Hut has a $4.8 billion share of the market, yet was only awarded $468,000 in damages despite four years of Papa John's campaign. Apparently, even Judge Sanderson couldn't really figure out how Pizza Hut was damaged.

Something else has been damaged, though. American culture takes it on the chin as, once again, whining is rewarded.

Papa John's scares Pizza Hut and with good reason. Papa John's sales are up 34 percent over the past year. For the three other major pizza chains, including Pizza Hut, growth was only 4 percent. But instead of competing harder the old-fashioned American way Pizza Hut complained to the Better Business Bureau. Then, unsatisfied with the BBB decision, Pizza Hut sued. It should be ashamed.

In 1998, Burger King rolled out its "It just tastes better" campaign in a direct attack on a struggling McDonald's. But instead of pressing the lawsuit panic button, McDonald's improved its operations and introduced a new cooking system to accommodate special orders. McDonald's profits have been climbing since. When Coca-Cola proclaimed Coke to be the "Real Thing," Pepsi did not sue over the implication that it was the "Fake Thing." Rather, Pepsi created the "Pepsi Generation" for the "cola war."

What's next? Under the Pizza Hut Principle, Circuit City should sue Best Buy.

News flash to Pizza Hut: Lawyers don't make better pizzas. The verdict against Papa John's also threatens that time-honored tradition in America from advertising to politics known as "puffery," the use of superlatives such as "largest," "best," "better," "lowest" and the like. For the most part, puffery is harmless.

Puffery may get you to try a product, but it won't keep you as a customer if the product is unsatisfactory. If we've decided that puffery is harmful, it probably needs to be removed from government and politics before pizza commercials. No one has been harmed and no one's rights have been infringed because pizza didn't live up to its billing.

Judge Sanderson should be embarrassed for wasting taxpayer resources on a dispute over pizza puffery. At best, Pizza Hut vs. Papa John's belongs before Judge Judy, Judge Joe Brown or some other judicial mockery. Don't federal judges have better cases to occupy their time?

Steven Milloy is a securities lawyer and an adjunct scholar at the Cato Institute.

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