Puffery and Pizza
posted by Nate Oman
In this commercial, Domino’s Pizza offers us a definition of “puffery.” So does the claim, “Our pizzas taste better, and that’s not puffery. That’s proven.” constitute a warranty?
(And don’t forget to read “The Best Puffery Article Ever”)
February 11, 2010 at 8:25 am
Posted in: Advertising, Contract Law & Beyond
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Responses (13)
Art - February 11, 2010 at 9:46 am
Hoffman’s article has my all-time favorite article. As a negotiation prof., it comes in handy for a concise explanation of the concept.
dave hoffman - February 11, 2010 at 11:49 am
Funny ad. I think it’s still likely not actionable. “Better” (than what?) and “taste” aren’t sufficiently definition, most courts would say. It’s like a statement in an LD clause saying “this clause is reasonable”, or a statement in a franchise agreement saying “you are not my agent”. Private party statements can’t control what are essentially public decisions about responsibility.
Nate Oman - February 11, 2010 at 12:34 pm
So what we have here is a claim that their claim is not puffery which in fact is puffery.
Dave Hoffman - February 11, 2010 at 12:44 pm
You can see why the issue merited sustained scholarly attention. It’s a briar patch.
AF - February 11, 2010 at 2:20 pm
‘”Better” (than what?) and “taste” aren’t sufficiently definition, most courts would say.”
Is this a joke? If you say this with no evidence, you’re toast. The whole point of the add is they actually ran a taste test and won.
Kaimi - February 11, 2010 at 2:39 pm
Domino’s crusts are no puffier than any others.
Dave Hoffman - February 11, 2010 at 2:41 pm
What a ridiculous typo by me. I should have said “defined”.
I’m toast? Who is cooking? What if the taste test was stacked, and a really scientific test would flip the outcome. Would you be able to sue on the grounds that the basis of the claim “tastes better” was demonstrably false? No: since “tastes better” is exactly the kind of puffery that courts will not permit to go to the jury. (Maybe in that circumstance there would be some claim by the FTC for the claim about the taste test itself…)
Kaimipono D. Wenger - February 11, 2010 at 3:06 pm
A related question:
Does the commercial and/or slogan constitute an advance waiver of any puffery defenses based on that claim?
That is, suppose someone decides to sue on the tastes better claim. Probably a loser, for reasons Dave notes. But is Domino’s barred from asserting in their MTD, among other things, that the statement is inactionable puffery? Or have they waived that defense by saying in advance, “this isn’t puffery”?
(Funny aside: The anti-spam word for this comment was “toast”)
AF - February 11, 2010 at 4:23 pm
Professor Hoffman:
To be clear, I’m referring to the claim “Our pizzas taste better, and that’s not puffery. That’s proven.” Clearly, the ad is stating as fact that a taste test has been performed and Domino’s won. If no taste test had been performed in which Domino’s won, that would be false advertising hands down. In a lawsuit on the issue, Domino’s would be toast. It’s not a matter of defining “taste” objectively.
If a test was performed and Domino’s did win, that’s different. Then the plaintiff would have to prove that the test was a sham. Again, the issue wouldn’t be whether Domino’s pizza does, in fact, taste better, but whether Domino’s had a factual basis for the claim that its better taste was “proven.”
I can guarantee you that Domino’s did perform a test, with at least facially plausible scientific methods, and did win. And if it didn’t I’ll sue and win!
dave hoffman - February 11, 2010 at 4:57 pm
The claim in the ad could be taken in the very narrow way you are taking it: we’re just reporting the result of a survey. In that case, what if they did 10 tests and prevailed on 3? Reporting the successful results is not false (though it conveys a false implication). But the more natural reading of the claim (I think) is that we are using one test to extrapolate to a much broader statement: “our pizza tastes better” (universally/you’ll agree!) Even if it were true that Domino’s had not run a test, or the test was flawed, I think they still prevail against claims that their pizza didn’t (in reality) taste better in some controlled counter-experiment. “Tastes better” is classic puffery.
AF - February 12, 2010 at 12:09 pm
“Pennzoil seeks to substantiate its claims of superiority by reference to testing. This distinguishes the present case from those cited by Pennzoil and defeats Pennzoil’s assertion that its claims constitute only puffery.”
Castrol Inc. v. Pennzoil Co., 987 F. 2d 939, 946 (3d Cir. 1993).
dave hoffman - February 13, 2010 at 12:38 pm
AF
Pennzoil claims: “outperforms any leading motor oil against viscosity breakdown” & “longer engine life and better engine protection.” Court says that the standard test for “the viscosity of unused motor oils is measured by an industry-recognized laboratory test developed by the American Society for Testing and Materials (ASTM).” Pennzoil used a different test, the “ASTM-3945 Test,” which the court below was “not a true measure of viscosity breakdown.”
I agree with you that the case is a variant of the hypothetical I posed: the court rejects the efficacy of the test asserted, and what’s left is the claim that the words of superiority are puffery. I think that viscosity and effect on engine life, which have a well-established meaning in the field, are distinguishable from “tastes better”, since viscosity (unlike taste, inherently subjective) is “is both specific and measurable by comparative research.” But to the extent that this court were to evaluate the claim, I concede it’s a decent precedent for your side! Based on reading many puffery cases as a part of that article I wrote, I don’t think this is how most courts would analyze the issue, though I happen to think the court’s analysis is right on.
AF - February 14, 2010 at 10:38 am
Professor Hoffman,
We might be talking past each other. I agree that a claim of “tasting better” would be considered puffery by some courts under the Lanham Act (though probably not by the NAD.) The leading case is the very one referenced in the Domino’s ad, Pizza Hut, Inc. v. Papa John’s Intern., Inc., 227 F. 3d 489 (5th Cir. 2000). As you know, the 5th Circuit found the slogan “Better Ingredients. Better Pizza.” to be puffery when considered in isolation, but to be misleading “in connection with a series of comparative ads . . . comparing Papa John’s sauce and dough with the sauce and dough of its competitors.”
But if I understand you correctly, you are saying that if a claim of superiority is puffery, a company is entitled to claim that such superiority has been “proven” by “tests” without actually doing any tests (or based on faulty tests). In my opinion, that is not even debatably true. Can you cite a case in which a company (1) claimed (non-facetiously) that its superiority was proven by testing, (2) did no testing, and (3) prevailed on a puffery defense?
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