- The Washington Times - Monday, January 8, 2001

Fresh from deciding who will lead the Free World, the Supreme Court was just asked to decide another vital matter: Can Papa John's advertise its pizza and its ingredients as "better" than those of its rivals?

The court was asked to spend its valuable time considering this weighty issue courtesy of Pizza Hut, which has whined for years that Papa John's slogan, "Better Ingredients, Better Pizza," is misleading.

Pizza Hut sued Papa John's over the slogan after losing before Better Business Bureau arbitrators in March 1998. After hearing testimony about pizza sauce and dough in the fall of 1999, a U.S. District Court jury decided that Papa John's misled consumers with its slogan. The jury also found, incidentally, that Pizza Hut misled consumers with advertising claiming Papa John's used old dough.

A three-judge panel of the U.S. 5th Circuit Court of Appeals overturned the jury verdict, ruling that Papa John's slogan is mere puffery an exaggerated advertising claim that didn't deceive consumers by itself.

Pizza Hut says the slogan isn't puffery because it gulp works. Papa John's own research indicates the ads convinced consumers that Papa John's made better pizza. Pizza Hut says, "This is about our ability to prevent our brand from being falsely disparaged by Papa John's or any other competitor."

Should the Supremes agree to take this taste test, Pizza Hut hopes the Federal Trade Commission will enter the case on its side.

The hypocrisy is breathtaking. Pizza Hut unabashedly uses the slogan "Best Pizzas Under One Roof." Pizza Hut says this slogan doesn't compare its product with others and claim superiority. I can only imagine the Supremes questioning Pizza Hut's counsel about the meaning of "best." Maybe the unemployed Bill Clinton can argue that one, provided he still has his law license.

Pizza Hut pursues this litigation because the $22 billion national market for pizza is fiercely competitive and margins are thin. Papa John's sales increased sharply over the last few years, while Pizza Hut's experienced much slower growth.

So if you can't beat 'em in the marketplace, maybe you can beat 'em in court.

What's next? Will Circuit City adopt the Pizza Hut mindset to sue Best Buy? Will Holiday Inn go after Best Western hotels? BMW claims to sell the "ultimate driving machine." What then is a Porsche? Coke is "the real thing." Is Pepsi "the fake thing"? Better get the Supremes to decide.

News flash to Pizza Hut: Lawyers don't make better pizzas. Even if they could, I doubt the Supremes could adjudicate which pizza is better.

Pizza Hut wants the Supreme Court to invalidate the time-honored American tradition of "puffery." The use of superlatives such as "largest," "best," "better," "lowest" and the like is common in advertising and politics. 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 the court decides puffery is harmful, the practice 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.

Most distressing is Pizza Hut's asking the Supreme Court's to be the arbiter of such a trivial claim. Deciding how votes should be counted in a presidential election is one thing; deciding whether Papa John's can claim "Better Pizza. Better Ingredients" is better suited for a county fair.

Joe Lieberman called Al Gore the "best man to lead America into the new century" when he was selected to be Mr. Gore's running mate. If Americans were smart enough to figure that one out, why shouldn't they be able to choose which pizza they prefer based on similar claims?

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


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