Intellectual Property Law

No One Believes Your Pizza Is Better

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Domino’s has just started a new ad that makes fun of Papa John’s for its defense in a false advertising case: challenged by Pizza Hut over its claim that “Better Ingredients” mean Papa John’s has “Better Pizza,” PJ responded that the statements were “puffery.” Puffery sounds like something related to the Big Bad Wolf, but it actually refers to advertising statements that are exaggerated or otherwise not linked to facts. Prosser and Keeton, on Torts, define it memorably as “a seller’s privilege to lie his head off… [since] no reasonable man would believe him.” Domino’s archly notes that if Papa John’s defense is that no one should believe their statements about quality, do you really want them handling your order for a pie with mushrooms and onions?

Puffery is weird. It escapes liability under a false advertising claim because, theoretically, no one believes it. But this is obviously stupid: puffery is amazingly common. Advertisers, as informal psychologists, wouldn’t be so eager to use these statements if they were ineffectual. So, this false advertising doctrine is, itself, a falsehood.

The better way to deal with puffery is to keep it exempt from liability, but for a more straightforward reason: puffery is opinion. There’s no way to verify whose pizza is better, but Papa John’s is entitled to state its opinion (which, unsurprisingly, is that PJ’s pizza is best, and Domino’s tastes like sneaker insoles). Opinion is protected speech, constitutionally, even in the advertising context. So, I vote we dump the concept of puffery as unbelievably outrageous, and instead assume that consumers understand these claims as opinion, even if we lose a few snarky commercials as a side effect.

Props to Jared Spiegel and Anthony Arioli for this one!

Full post as published by Info/Law on February 11, 2010 (boomark / email).