The Best Article About Puffery Ever

Advertisers strive to grab their target audience’s attention with bold advertising assertions made without substantiation. But, there is a thin-line that separates actionable false advertising and permissible “puffery”. While companies and advertisers can be held liable for false advertising, puffery — that is, advertising claims that are not measurable and are therefore not normally relied upon by consumers — is not actionable. So, a diner advertising the “World’s Best Cup of Coffee” (such as the one in Will Ferrell’s Christmas classic “Elf”) can’t be sued for false advertising even though the coffee tastes horrible.

However, calling something puffery is easier said than done. Whether or not an advertiser intended to communicate a particular advertising claim has no bearing on liability for false advertising, which is a strict liability offense. To make things harder, the applicable legal standards are ever-evolving, with recent cases furthering a legal trend in which courts are determining that advertising claims, which might normally be considered puffery, actually require substantiation because the court found that they are measurable as part of comparative advertising claims.

While there is no bright line rule when parsing false advertising from puffery, this article seeks to shed some light on that calculus.

What is Puffery?

The origins of the legal term “puffery” can be traced back to an 1893 English Court of Appeal case involving a manufacturer’s promise to compensate customers with £100 pounds (a large amount at the time), if they were to contract the flu after properly using the Carbolic Smoke Ball—a rubber ball with a tube that allowed users to inhale carbolic acid vapors purportedly to prevent disease. Eventually, a consumer sued the company after it refused to reimburse the customer who contracted the flu. During trial, the manufacturer defended its marketing claims by arguing such statements were “mere puff” and not meant to be construed literally. Although the three judge panel ruled against the manufacturer, the decision endorsed the notion that traditional rules relating to promises might not apply to advertisements that were clearly not meant to be taken seriously. The legal defense of puffery was born.

The puffery defense became more prevalent in the early 1900s when U.S. courts commonly applied a caveat emptor approach to commercial transactions. For example, the Second Circuit in Vulcan Metals Co. v. Simmons Manufacturing Co., allowed a company to use a puffing defense, noting that consumers already naturally distrust marketing slogans and finding that customers have equal means of knowing or inspecting a product before purchasing it.

Puffery Today

Today, the legal definition of puffery differs somewhat from jurisidiction-to-jurisdiction. The U.S. Court of Appeals for the Third Circuit, for instance, defines puffery as marketing “that is not deceptive, for no one would rely on its exaggerated claims.”U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia., 898 F.2d 914, 922 (3d Cir. 1990) (“Mere puffing, advertising ‘”that is not deceptive for no one would rely on its exaggerated claims,”’ is not actionable under § 43(a).” Toro Co. v. Textron, Inc., 499 F. Supp. 241, 253 n.23 (D. Del. 1980)). The Ninth Circuit describes puffery as “exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely.”Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997). Meanwhile, The Fifth Circuit defined puffery to be “a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.”Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 497 (5th Cir. 2000).

Generally speaking, claims that a product is “incredible” or “best quality,” to name a few, will usually be seen as “mere puff”. However, when exaggerated marketing claims move closer to something that can be measured, advertisers risk that the claim will be considered actionable false advertising under the Lanham Act. More specifically, Section 43(a) of the Lanham Act establishes the standard under which false advertisement claims are reviewed. This standard consists of the following questions:

  1. Whether the advertiser made a false or misleading statement of fact about a product;
  2. Whether the misrepresentation of fact deceived or had the capacity to confuse the general public;
  3. Whether the deception is material, in that it is likely to influence the consumer’s purchasing decision; and
  4. Whether the plaintiff has been or is likely to be injured as a result of the statement at issue.15 U.S.C. § 1125 (a) (1); see also Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1500 (5th Cir. 1990).

Additionally, the statements must be verifiable and “capable of being prove[n] false” by scientific methods.Coastal Abstract Serv. Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999). Statements that do not meet the standard above, and cannot be scientifically proven, are likely to be classified as non-actionable puffery.

Pizza Hut v. Papa John’s

Despite the above, discerning puffery from false advertising is tricky work. A well-known example of this was seen in Pizza Hut, Inc. v. Papa John’s International, Inc., Pizza Hut sued Papa John’s based on its $300 million national marketing campaign that included, among other things, the slogan, “Better Ingredients. Better Pizza.” Pizza Hut not only claimed that the slogan itself constituted false advertising, but also challenged the entire marketing campaign for its disparaging representations of the competitions’ food quality. In fact, the Papa John’s marketing campaign made multiple assertions, including an ad that claimed that its pizza dough was made with “clear filtered water,” while its competitors, including Pizza Hut, used “whatever comes out of the tap.” During trial, the jury concluded that although Papa John’s advertisements were true, they were actively misleading to consumers. The trial court held that these misleading statements “tainted” Papa John’s slogan, and enjoined the company from continued use.

Papa John’s appealed the decision, arguing that its slogan “Better Ingredients. Better Pizza” constituted non-actionable puffery. The Fifth Circuit agreed, concluding that the slogan by itself was not a claim customers could justifiably rely on because it concerned individual taste not subject to scientific verification. The court also found that the slogan “epitomizes the exaggerated advertising, blustering, and boasting by a manufacturer upon which no consumer could reasonably rely.”

Nevertheless, the court upheld the jury’s finding that the slogan was misleading when considered in conjunction with Papa John’s entire marketing campaign. The court stated that when viewed in combination with Papa John’s dough and sauce ads, such as the filtered water claim, the slogan changed from non-actionable puffery into a quantifiable statement of fact regarding the relative quality of its ingredients.

Thus, the otherwise unverifiable slogan, “Better Ingredients. Better Pizza,” became effectively tainted “as a result of its use in a series of ads comparing specific ingredients used by Papa John’s with the ingredients used by its ‘competitors.’”This case provides a cautionary tale of how the context of an advertisement can transform the most obvious puffery into a false and misleading statement under the Lanham Act, and in particular, the risks encountered when puffery is used in marketing campaigns featuring comparative advertisements.

Puffery and Comparative Advertising

When advertising exaggerations are obvious and outlandish, puffery defenses are more certain. Such was the case in Martin v. Living Essentials, LLC, in which the Seventh Circuit affirmed the district court’s decision dismissing false advertising claims brought by the individual world record holder for consecutive kicks of a Hacky Sack. The case involved a commercial advertisement by 5-hour ENERGY that depicted a person who had disproved the theory of relativity, “mastered origami while beating the record for Hacky Sack,” swam the English Channel, and found Bigfoot all within the span of five hours from consumption. The Court held that there was “no danger of consumer deception and hence, no basis for a false advertising claim,” further finding that the challenged statement was “an obvious joke that employ[ed] hyperbole and exaggeration for comedic effect,” and therefore constituted puffery.

However, in less obvious cases in which comparative advertising is present, puffery defenses are harder to maintain. In XYZ Two Way Radio Service, Inc. v. Uber Technologies, Inc., while the court ultimately accepted Uber’s puffery defense, it may be the closest an advertiser can come without facing consequences for unsubstantiated comparative advertising. In XYZ Two Way Radio, two vehicle for-hire companies that provided black-car services sued Uber for allegedly false statements touting the “safety” of Uber’s services. The court found that Uber’s safety-related statements fell into the “boastful and self-congratulatory” definition of puffery because many of the statements were couched in terms such as “committed to,” “aim to,” or “we believe deeply”. The court also found that other challenged statements could not reasonably be understood as representations of fact that could be proven—e.g., “Uber is committed to connecting you to the safest ride on the road. This means setting the strictest safety standards possible, then working hard to improve them every day.” The court reasoned that if Uber literally set the “strictest safety standards possible,” it could not “improve them every day.

Neither was the court persuaded by the plaintiffs’ challenge of Uber’s guarantee that its drivers “must go through a rigorous background check” that is “often more rigorous than what is required to become a taxi driver.” Although Uber’s background check did not require fingerprints, a medical clearance or a drug test—all of which New York City requires for licensed cab drivers—the court explained that Uber’s background check statements are also “boastful and self-congratulatory.” Further, this statement, featured on Uber’s web site, included the qualifier “often,” so that Uber was actually stating that its background checks are often more rigorous than what is required to become a taxi driver. Uber’s website also included the disclaimer that “specifics [on the background checks] vary depending on what local governments allow.” Ultimately, the Court concluded that Uber’s statements were meant simply to convey that it takes the safety of its passengers very seriously.

Conclusion

Puffery can be a powerful marketing tool that, if used correctly, can capture the attention of consumers and garner sales. But puffery is not without its dangers. Advertisers and marketers must take care to ensure that their claims do not need substantiation. The more the claim resembles a measurable fact or comparative advertisement, the more likely the claim will require substantiation and, if not supported, the advertiser will be held strictly liable for false advertising.

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