Two advertisers recently received a little more leeway to flex their collective funny bone–even when competitors were the butt of their jokes.
This summer, a federal court in California refused to enjoin a Jack in the Box campaign, which allegedly targeted "Angus" burgers sold by Carl's Jr. and Hardee's chains. In one television commercial, "Jack," the clown-headed fictional CEO, shows his employees a picture of a cow, with different cuts of meat labeled, so that he can show his team the source of the Jack in the Box "sirloin" burgers. An employee then mentions that a competitor sells "Angus" burgers, and asks Jack to point to the "Angus area" of the cow. Jack looks at the rear-end of the cow and states, "I'd rather not." While the Court was concerned about "innuendo, indirect intimations and ambiguous suggestions," it didn't believe it was likely that consumers would actually think that competitors' hamburgers were made from the rear end of a cow.
Last fall, a Hebrew National Kosher Beef Franks television commercial was reviewed by the National Advertising Division, the advertising industry's leading self-regulatory organization. In that spot, a picture of a cow is also shown, with the front half labeled "kosher" and the back half labeled "non-kosher." The voiceover says, "kosher hot dogs only use the finest cuts of kosher beef. Not so with the other guys."
The spot then ends with the voiceover claiming, "they just might be the most delicious hot dogs on Earth. No ifs, ands or butts," with the word "butts" appearing over the back half of the cow. Again, the NAD found no problem with the spot. It found that ConAgra, the maker of Hebrew National hot dogs, could substantiate that its hot dogs were indeed only made from the front half of the cow and that non-kosher hot dogs may contain meat from the back half. The NAD also found that the spot simply conveyed "a high quality" message, rather than a comparative claim about the quality of the meat found in competitors' hot dogs.
Implied Claims
You are responsible for more than just the express claims that are made in your advertising. It's just not enough for an ad to be truthful on its face. You're also responsible for ensuring that you can back up any implied claims that are communicated–such as that your competitor's product is made from, well, butt meat. When your advertising is challenged, the courts and the NAD are going to consider what consumers' "net impression" is–that is, what will consumers really understand to be communicated, thinking about the advertising as a whole?
Humor
The outcome of the Jack in the Box case might have been different, for example, if the lines were delivered by someone who didn't have a clown head. Even if your spot is funny, that doesn't mean you get a free pass to say anything you want. You're still responsible for ensuring that claims that consumers reasonably understand to be communicated are truthful. Sometimes, humor can make a difference. It can play a role in helping to determine whether an implied message is actually conveyed. Is the spot over-the-top enough and ridiculous enough to avoid any miscommunication? In practice, this turns out to be more difficult to accomplish than it sounds. Even truly hilarious spots often still communicate very specific claims about advertisers and their competitors.
So can you say whatever you want so long as it is funny? Are butt jokes always fair game now? Do you have to worry about your next meal at a fast food restaurant? Of course not. But a little humor may, if you're lucky, get you the benefit of the doubt.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney for legal advice.
Jeffrey A. Greenbaum ESQ is a partner and Michael Schiffer ESQ is an associate at Frankfurt Kurnit Klein & Selz, New York.
If you have a suggestion for a topic to be covered in a future column, send an e-mail to jagreenbaum@fkks.com.
