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Published: Tuesday, 8/16/2011

'Wiener wars' on ad claims under way in Chicago court

ASSOCIATED PRESS
A judge will decide whether Oscar Mayer or Ball Park franks broke false-advertising laws. A judge will decide whether Oscar Mayer or Ball Park franks broke false-advertising laws.
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CHICAGO -- The nation's two largest hot-dog makers took their legal beefs Monday to federal court, where a judge will determine whether Oscar Mayer or Ball Park franks broke false-advertising laws in their efforts to become top dog.

As the bench trial got under way, U.S. Magistrate Judge Morton Denlow looked across the Chicago courtroom at half a dozen attorneys at opposing tables, and said, "Let the wiener wars begin."

The battle pits Sara Lee Corp., which makes Ball Park franks, against Kraft Foods Inc., which makes Oscar Mayer, in a case that could clarify how far firms can go when saying that their product is better than a competitor's.

Despite the judge's light-hearted remark, attorneys for the food ma- kers struck a serious tone.

"There's never been anything of this scope … in the entire history of hot dogs," said Sara Lee's attorney, Richard Leighton, about what he described as Kraft's false and deceptive ad claims about making a better-tasting frank.

Sara Lee fired the first volley in a 2009 lawsuit singling out Oscar Mayer ads that brag its dogs beat Ball Park franks in a national taste test. Mr. Leighton argued the tests were deeply flawed, for example, participants were served hot dogs without buns or condiments.

"They were served boiled hot dogs on a white paper plate," he said, adding that Sara Lee's hot dogs may have tasted too salty or smoky eaten without buns.

Kraft filed a lawsuit in 2009, alleging that Sara Lee ran false and deceptive ads, including a campaign in which Ball Parks are touted as "America's Best Franks." The ad asserts that other hot dogs "aren't even in the same league."

Another focus of the trial is Kraft's claim that its Oscar Mayer Jumbo Beef Franks are "100 percent pure beef." Sara Lee says the claim is false. The aspersions cast Ball Park franks damaged their sales.

Kraft defends the "100 percent pure beef" tag, saying its intent was to state that the only meat used is beef. Some industry hot dogs include turkey, pork, chicken or other meats. Kraft further argues that the "pure beef" label is justified because surveys show a perception among some consumers that hot dogs contain "mystery meats."

Judge Denlow interrupted Sara Lee's attorney several times in his opening statements. "Don't we have here a couple of big hot dog companies just saying they are the best?" the judge asked at one point.

"Is there something more unusual going on here than what goes on every day?"

Mr. Leighton said that Kraft's alleged manipulation of the taste test and its massive ad campaign based on it in 2009 made the case unique.

At another point, Judge Denlow said one could argue Sara Lee used similar practices, including citing in its ads that its dogs are Number One because Ball Park Franks received an award from 10 top chefs in San Francisco.

"And how would 10 chefs in San Francisco know what the best hot dog is when they have never been to Chicago or tasted a Chicago hot dog?" Judge Denlow said, smiling.

The judge broached that subject again later, alluding to a rule among city connoisseurs never to put ketchup on a Chicago-style dog.

When Mr. Leighton suggested those participating in the Kraft hot-dog tests should have had the choice of squirting ketchup on their dogs, Judge Denlow interrupted, saying, "That's an area of great debate."



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