Two pizza chain's heated battle over the advertising slogan "Better Ingredients, Better Pizza'' landed before a federal appeals court Wednesday.
The 5th U.S. Circuit Court of Appeals was asked to reverse a federal magistrate, who in January ordered Papa John's International Inc. to forever stop using the word "better'' to describe its pizza. The ruling by U.S. Magistrate William Sanderson in Dallas said Papa John's could not even compare its product to that of competitor Pizza Hut, which had sued to halt the campaign.
Sanderson ordered Papa John's to take down the slogan "Better Ingredients, Better Pizza'' from its storefronts and off its pizza boxes after a jury decided the "better'' pitch was false advertising in references to pizza sauce and dough but was not deceptive in other newspaper and television ads.
The judge also ordered Papa John's to pay $468,000 in damages to Pizza Hut, a unit of Louisville-based Tricon Global Restaurants Inc.
Attorney Phil Wittmann, representing Louisville, Ky.-based Papa John's, said the jury was wrong, but, even if the jury was correct, the magistrate's sweeping ruling was wrong.
"The slogan is not literally false and cannot be false because it is tuned to the opinion of the consumer,'' Wittmann told a three-judge panel. "There must be a factual misrepresentation before there is false advertising.''
In court Wednesday, Thomas Morrison, representing Pizza Hut, rapidly fielded several questions from Judge E. Grady Jolly, who suggested the interpretation of the slogan was up to the individual consumer.
"The question is whether people have been misled,'' Jolly said. "You don't have any evidence, by my understanding, or a survey to show that.''
Morrison said that was not a requirement of federal trade law.
"You're telling me 'Better Ingredients, Better Pizza' is a statement of fact. I think it's an opinion,'' Jolly said.
"That's why we had a jury. ... All you have to be convinced of is that these ads tend to deceive the consumer,'' Morrison said. "If a person gives a reason why a product is better and can prove it, then he can use that ad. But if the claim is false or doesn't make a difference, he cannot.''
Wittmann countered that the ads were all puffery, harmless boasting that consumers expect in commercials, and not serious, false claims.
"Puffery is hyperbole that the general consumer is not expected to take seriously,'' Wittmann said.
The panel did not indicate when it would rule.
ALAN SAYRE, AP Business Writer, April 5, 2000 , Associated Press
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