This Column Is Waaay Better
Wendy’s is running an ad campaign that features the tag line “It’s waaay better than fast food, it’s Wendy’s.” Of course, common sense says that it is virtually impossible to define Wendy’s as anything but fast food. So given the generally accepted notions of ”truth in advertising,” why aren’t Wendy’s competitors rushing in to yank the wig off this audacious assertion?
There are two good issues brought up with this question, and both are very relevant to life in contemporary quick-serves. The first has to do with whether there is actually any sort of legal action that might be brought against Wendy’s hyperbolic claim. The second, far more compelling in this neck of the woods, has to do with whether a challenge to Wendy’s ad makes any sense from a competitive marketing standpoint.
The legal issue is governed by a 60-year-old piece of congressional legislation called The Lanham Act. Primarily passed as trademark protection law, the Lanham Act also sets forth the legal parameters of false advertising. When a company contends that a rival’s marketing claims are false or unproven to the extent that they injure a competitor’s reputation and/or negatively impact its competitive business ability, it is the provisions of the Lanham Act that are most often invoked in court.
There is an ungodly amount of case law and commentary regarding the Lanham Act, and there is far from unanimity of opinion on the interpretation of its provisions. Rebecca Tushnet, a Georgetown University law professor who specializes in this area, tried to help me sort it out. Although I am grossly oversimplifying her expert analysis, here’s what it really boils down to: While “the court” is certainly going to be protective of the legal rights of all duly qualified litigants, there has been an historical disposition to let companies “fight it out in the marketplace.”
“You can’t make false material claims,” Tushnet says, “but it is also essential that any claim you make is going to be believable by consumers. No court is going to expect [the Wendy’s claim] to be taken seriously. The court would call it puffery.”
A similar situation arose a few years back when KFC announced to the world “There’s fast food, and then there’s KFC.” This campaign positioned a KFC fried chicken dinner as superior to one comprised of burger and fries, and is probably best remembered for featuring Seinfeld’s Jason Alexander as the pitchman. Even though aggressive culinary and nutrition claims were made during the course of the campaign, the rest of the fast-food world smirked and let the puffed-up advertising die a natural death.
The first thing that is apparent with the Wendy’s and KFC campaigns is that they were both hatched during times of competitive weakness in company growth and profitability. A litigious competitor is far more likely to emerge when a company not only makes a specific material claim of superiority, but is seen by a plaintiff as legitimately dealing from a position of strength. Two such memorable instances are the Burger Wars of 1982; and the Pizza Hut v. Papa John’s “Better Pizza” brouhaha that spent six years in court.
The Burger Wars were provoked by Burger King’s unprecedented and aggressive “Battle of the Burgers” claim that its grilled burgers were superior to the ”fried” burgers produced at McDonald’s and Wendy’s. Both McDonald’s and Wendy’s sued, on charges ranging from Burger King’s own use of microwave ovens to a lack of proof that consumers actually preferred the flame-broiling method of cooking. Ultimately the suits were dropped when Burger King agreed to phase out the offending advertising. The bottom line result of the attendant publicity was a fiscal 1982 increase of 17 percent in Burger King sales.
Surely the marketing lesson was not lost on Papa John’s, when it initiated its “Better Ingredients, Better Pizza” advertising in the late 1990s. The Pizza Hut case against its younger and smaller rival lasted from 1998 to 2004, with the court originally agreeing that Papa John had not proven its superiority claim, and then deciding against Pizza Hut some years later on a technicality related to jury instructions. The case has become an important one in legal circles as it addresses the difference between false statements and statements of personal taste. Famed marketing guru Al Ries nailed the real issue when he commented to Fortune: “When you can get the category leader to come out and fight you, it's a surefire way to get media coverage.”
To Tushnet, it is just this savviness on the part of professional marketers that might well impact legal interpretations of The Lanham Act in the future. Where courts have been historically inclined to rely on intuition regarding the transparency of advertiser claims, there is an increasing awareness that marketing professionals are de facto social scientists who are well aware of the impact that their choices have on consumer behavior.
“Maybe marketers do know us better than we know ourselves,” Tushnet says. “It’s their job after all to know what motivates us. Marketing research may play a much bigger role than ‘reasonable eyeballing’ or ‘common sense’ in these court cases from here on.”
Steve Weiss, a CIA graduate and veteran foodservice editor, is director of trends research with Near Bridge Consulting.
