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. An advertiser’s intent is irrelevant when it comes to false advertising, which is judged on a strict liability standard. To make things harder, the applicable legal standards are always evolving, with recent cases furthering a legal trend in which courts are determining that false advertising claims, which might normally be seen as puffery, require further substantiation when they are considered by the court as comparative advertising.
While there is no silver-bullet rule when parsing false advertising from puffery, this article seeks to shed some light on that calculus.
What is Puffery?
The legal concept of “puffery” was first developed in an 1893 English Court of Appeal case. The Carbolic Smoke Ball Company manufacturered a flu remedy called the “carbolic smoke ball,” and advertised that customers who contracted the flu despite using it would be awarded £100 pounds. Louisa Elizabeth Carlill saw the advertisements, bought one of the balls, and used it three times daily until she contracted the flu, and subsequently tried to claim the £100 pounds. At trial, the Carbolic Smoke Ball Company claimed the advertisement was “mere puff” and should not have been taken seriously. Their defense didn’t work, but their argument at trial created the legal defense of puffery.
Though every circuit that has considered the issue has ruled that “puffery” or “puffing” are not actionable as matters of law, those same circuits have varied in how they have defined puffery. For example:
- The Ninth Circuit defines puffery as “involving outrageous generalized statements, not making specific claims, that are so exaggerated as to preclude reliance by consumers.”Cook, Perkiss Liehe v. N.C. Collection Serv, 911 F.2d 242 (9th Cir. 1990)
- The Third Circuit has defined 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).”
- The Fifth Circuit has ruled that puffery is “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).
- The Second Circuit has held that a claim of puffery is supported by “subjective claims about products, which cannot be proven either true or false.”Warner Cable v. Directv, 497 F.3d 144 (2d Cir. 2007).
When an advertising claim is boastful and exaggerated to the degree where it is not possible to accurately measure or substantiate, it is likely that the court will view said claim as “mere puff”. This was the case in Kommer v. Ford. Kommer — who had purchased a Ford F-150 — took issue with the quality of his truck’s doors and locks. Kommer subsequently sued Ford, claiming that “Built Ford Tough” constituted false advertising. The court dismissed Kommer’s claim, ruling that the slogan “Built Ford Tough” could not be measured and made no specific references to the quality of the doors and locks that Kommer took issue with.
When claims approach measurable territory, advertisers may find themselves strictly liable of false advertising claims. Under Section 43(a) of the Lanham Act provides the elements courts utilize when reviewing such claims. Namely, courts must ask:
- Is the claim a false or misleading statement of fact?
- Is the false or misleading statement likely to cause confusion?
- Is the misrepresentation material (i.e. will it influence someone’s purchases)?
- Has the Plaintiff suffered (or is the Plaintiff likely to suffer) legal injuries as a result?
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.
In the world of advertising and marketing, puffery plays an integral role in tantalizing would-be customers and drawing their attention to products and services. But the law places limits on what constitutes as inactionable puffery, and exaggerations that have veered into the territory of actionable false advertisement. In order to avoid legal liability, advertisers and marketers must take care to ensure that claims are made that are not measurable and can not be independently substantiated or verified. Advertising statements of fact that are, in fact, measurable or compare one specific product to another must be supported by evidence. Otherwise, an advertiser will held liable for false advertising.