More on Pizza and Puffery
posted by Lisa Fairfax
Like Nate, the Domino’s puffery commercial caught my eye. In addition to his concerns, the commercial prompted me to think about at least two other issues related to the commercial’s effectiveness.
First, given that Domino’s only has a couple of seconds to get across its message, do most viewers really appreciate the reference to puffery? To be sure, Domino’s loves it so much that they have dedicated a whole site to the “Stop the Puffery” idea and “calling out Papa John’s”. Moreover, it seems to be garnering a lot of buzz on legal blogs, such as these thoughts on ContractsProf Blog and Above the Law. But as those posts reveal, the initial puffery reference stems from an old case between Papa John’s and Pizza Hut where Papa John’s essentially admits that its “Better Ingredients. Better Pizza” slogan is puffery in order to avoid Pizza Hut’s claim that ads using the slogan were false and misleading. Interestingly, the Fifth Circuit case notes that “Pizza Hut does not appear to contest the truthfulness” of Papa John’s factual assertions that Pizza Hut used frozen dough, made its dough using “whatever comes out of the tap,” and made its sauce from remanufactured tomato paste. Instead, Pizza Hut suggest that the ingredients make no difference in terms of taste. In any event, the Fifth Circuit concludes that Papa John’s slogan is non-actionable puffery and thus did not really impact people’s buying decision. From Domino’s perspective, calling Papa John’s slogan puffery is supposed to get across the idea that the slogan is “NOT FACT”–or in Papa’s John’s words, involves claims about “common sense choice.” But it is not clear how much, if any, of that gets across in the ad.
Second, wasn’t it just last month that Domino’s launched an ad strategy based on a mea culpa where company executives not only quoting comments likening Domino’s crust to cardboard and the sauce to ketchup, but also comments like “worst excuse for pizza I ever had,” and “totally devoid of flavor”? The apology strategy seemed both bold and risky. Though one could argue that it is only a few steps removed from ads that offer “new and improved” products, except those ads don’t explicitly admit that the old product was relatively worse. Nevertheless, Domino’s apologetic strategy seems at odds with the attack strategy in these puffery commercials. Indeed, the apology appears to be aimed at fostering good will and a positive outlook. Moreover, the apology seems to be at the very least an implicit acknowledgement that Domino’s pizzas (and ingredients) were worse than their competitors. So the puffery attack seems a bit hard to swallow.
But in the interest of being honest, I will admit that I have not yet tasted the new and improved Domino’s pizza, and hence can’t really say anything about the pizza. . .just the pizza ad.