Sara Lee Corp., which makes Ball Park® franks, and Kraft Foods, Inc., which
makes Oscar Mayer® hot dogs, have reportedly brought their marketing
dispute to a Chicago courtroom where trial recently began on claims each
company brought against the other over ad campaigns that sought to
distinguish their brands. Stating “let the wiener wars begin,” U.S. District Judge
Morton Denlow apparently opened the bench trial on August 15, 2011.

Sara Lee takes issue with Kraft claims that its hot dogs beat Sara Lee’s in a
national taste test and that its hot dogs are “100 percent pure beef.” According
to Sara Lee, the taste test was flawed because the products were not served
with condiments or buns, and hot dogs containing filler and chemicals
cannot be called 100 percent pure. Kraft defends its testing and asserts that
consumers understand that “pure beef” means that the products do not
contain other meats.

Kraft challenges Sara Lee ads claiming that its hot dogs are “America’s Best
Franks” and that other hot dogs “aren’t even in the same league.” Sara Lee
apparently based its claims on an award bestowed on the company’s Ball
Park® franks by leading San Francisco chefs. During the company’s opening
statement, the court reportedly questioned how “ten chefs in San Francisco know what the best hot dog is when they have never been to Chicago or tasted a Chicago hot dog?”

Expected to last several weeks, the courtroom trial is purportedly rare in an
industry that generally resolves its advertising disputes by bringing them before
the Better Business Bureau’s National Advertising Division. According to some
legal commentators, it could help define how comparative testing should be
conducted, as well as what types of claims are actionable. See Chicago Tribune,
August 15, 2011; Advertising Age, August 17, 2011.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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