Hot dog lawsuits: Will real wiener emerge?

Every lawsuit has its losers. But rare is the case with wieners on both sides.

America’s two biggest hot dog brands, Oscar Mayer and Ball Park, began to duke it out in a Chicago federal court on Monday, in a bid to end three years of legal wrangling over advertising allegations.

The dispute began in 2009 with a national hot dog taste test by Kraft Foods, maker of Oscar Mayer hot dogs. It advertised that Americans prefer their dogs over Ball Park franks. Sara Lee, which owns Ball Park franks, sued, saying that its hot dogs weren’t prepared and served properly in the test.

But that's just the start of it.

Each company is also contesting claims that the other has made about its own frankfurters. Kraft says it’s Jumbo Beef Franks are made with “100 percent pure beef,” which Sara Lee says is misleading. And Sara Lee claimed in a 2009 ad that its hot dogs are “America’s Best Franks,” and that other hot dogs “aren’t even in the same league.” Here, Kraft would beg to differ.

"Not in the entire history of American hot dogs ... was a campaign of this scope launched," Sara Lee attorney Richard Leighton said of Kraft's allegedly misleading advertising on Monday, the Associated Press reports. Kraft attorney Stephen O'Neil responded by calling the filing of the lawsuit "an act of utter hypocrisy" on Sara Lee's part, because Ball Park franks have also been labeled as "all beef" when they, too, contained other ingredients.

This kind of lawsuit, when a company questions the fairness of its competitor’s comparison tests or claims, is quite common, says Harold Weinberger, a partner at Kramer Levin Naftalis & Frankel LLP in New York, who teaches a course in false advertising law at Columbia University in New York.

A company can be sued if it makes a claim that is literally false or implicitly false, says Mr. Weinberger. For instance, Kraft says it advertised “100 percent pure beef” to let customers know that beef is the only meat in the hot dog, but not that it is the only ingredient. If it can be proven that customers are misled by the statement, then Kraft could be at fault, says Weinberger.

As for Sara Lee’s claim that it makes “America’s Best Frank,” Weinberger says, “that’s historically viewed as a form of ‘puffing.’” The word “best,” is nonspecific, and could refer to the hot dog’s appearance, taste, price, or any other number of non-objective qualities. “It’s generally not actionable [in court],” Weinberger says.

Brand advertisements first started attacking competition in the mid-80s, Weinberger says.

“Kraft and Sara Lee aren’t the only ones going at it with disputes over marketing,” right now, says Erin Lash, an analyst at the Chicago-based investment research firm Morningstar. “Church & Dwight and Clorox have been battling about cat litter.”

Earlier this year, Church & Dwight, the maker of Arm & Hammer Super Scoop kitty litter, complained that Clorox, the maker of Fresh Step litter, aired a misleading ad. The ad showed cats turning their noses at litter boxes with Super Scoop and opting for the Fresh Step instead.

Cats and dogs aside, maintaining a solid reputation is crucial for any company nowadays.

“From the perspective of the consumer, spending still remains tight,” says Ms. Lash. “Brand perception and getting out in front of these consumers is crucial.”

“They wouldn’t be going to court if they didn’t think it mattered,” she adds.

The Associated Press contributed to this report.