You can get into serious legal trouble using ads with puffery if they cross the fine line between ads with puffery and false advertising.
This article will provide a general formula for writing ads with puffery that are legal... to help you avoid a costly lawsuit for false advertising.
We'll cover basic ads with puffey marketing guidelines. They will help you develop a working knowledge of how to navigate the fine line between puffery advertising and false advertising, with specific examples of puffery in advertising, including video.
Chip Cooper, Esq. ecommerceattorney.io
In this Article, We'll Discuss Just How Fine the Line Between Ads With Puffery and False Advertising Can Be.
What we'll cover:
* What are ads with puffery;
* How context affects ads with puffery;
* Guidelines for determining the fine line between puffery ads and advertising claims;
* 3 examples of ads with puffery by exaggeration, opinion, and imagery; and
* 2 examples of ads with puffery by humor.
What are Ads With Puffery?
Let's start with the definition: what is puffery?
We'll explore how courts of law, the Federal Trade Commission (FTC) and the National Advertising Division of the Council of Better Business Bureaus (NAD) distinguish between actionable ad claims and non-actionable puffery advertising that use puffery.
There is no universal definition for puffery. NAD describes puffery as:
“An exaggerated, blustering, or boasting statement, or a general claim that could only be understood as an expression of opinion – not a statement of fact.”
Federal Circuit Courts of Appeal have used similar definitions of puffery in litigated cases.
* 3rd Circuit defines puffery in advertising as “not deceptive, for no one would rely on its exaggerated claims.”
* 9th Circuit puffery definition: “exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely”.
* 5th Circuit puffery definition: “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”.
Is Puffery Illegal?
No, puffery is legal. Puffery ads, as distinguished from ad claims, are not regulated (not actionable). Puffery is legal and completely safe for marketers to use, provided that the puffery ad is really puffery and not a disguised ad claim.
The key: staying on the puffery side of the line between puffery advertising and actionable ad claims
In my experience with clients, puffery in marketing has been a very effective marketing tactic. It gets you noticed, particularly if you add humor.
This article reflects my experience with clients, helping them to avoid legal pitfalls leading to lawsuits for false advertising that can result in devastating consequences for litigation damages, harm to their brands, and damaged personal reputations.
What's the Difference Between an Ad Claim and Ads With Puffery?
For starters, what is an actionable ad claim?
Actionable ad claims are specific claims an advertiser makes regarding the advertiser's product or service which can be either express or implied, and provable true or false.
Ad claims may be litigated by regulators in favor of consumers and by businesses against competitors.
Regarding consumer protection, the FTC enforces its consumer protection laws against advertisers for deceptive ad claims under the Section 5(a) of FTC Act.
False advertising is a strict liability offense that can result in substantial liability to competitors, particularly when intended puffery is used in marketing campaigns that involve comparative advertising involving competitors.
As distinguished from puffery, advertisers with ad claims must substantiate the claims with “reasonable basis” prior to publishing the ad.
So, if you intend your puffery advertising headline, slogan, or tagline to be non-actionable puffery, but it really isn't puffery because it crosses the line to be an actionable ad claim, you will be subject to a lawsuit by a competitor for false advertising under the Lanham Act.
Slogan: "Better Ingredients. Better Pizza."
Probably one of the best-known examples of puffery advertising is Papa John's famous slogan, “Better Ingredients. Better Pizza”.
What's probably not best known is that Pizza Hut sued Papa John's claiming:
* The slogan itself was false advertising, not puffery advertising, and
* Pappa John's entire marketing campaign was false advertising based on Papa John's specific assertions regarding poor food quality regarding Pizza Hut's dough and sauce.
Pizza Hut prevailed at the trial court. Papa John's appealed to the U.S. 5th Circuit Court of Appeals (2000).
5th Circuit Court Rules: Context Trumps Slogan
The 5th Circuit agreed with Papa John's that the slogan was puffery, essentially that the slogan, taken alone, constituted “exaggerated advertising, blustering, and boasting by a manufacturer upon which no consumer could reasonably rely.”
However, the 5th Circuit Court also ruled that the context of Pappa John's advertising campaign regarding assertions about the poor quality of Pizza Hut's water and dough changed the slogan from non-actionable puffery to false advertising.
The Court reasoned that Papa John's specific fact claims regarding poor food quality were quantifiable statements of fact that required substantiation as ad claims.
The Papa John's case is an illustrative example of why determining the fine line between a legal puff and a false advertising can be so tricky.
It's tricky because the context of an advertising campaign may convert a legal puff (such as a headline slogan or tagline) into legal liability for false advertising.
In my experience with clients, the single most consequential advertising mistake that most make is to focus solely on the slogan, headline or tagline without considering the context of the entire advertising campaign.
So, remember the big takeaway from the Papa John's case: advertising campaign context can transform a legal puff into a devastating false advertising lawsuit - devastating in terms of potential legal damages and harm to the advertiser's brand.
Guidelines for Determining the Fine Line between Ads With Puffery and Ad Claims
1. Examine Ads for Potential Deception
The FTC Policy Statement on Deception describes four types of deceptive advertising.
Start your analysis by asking four questions to determine whether the advertisement may be deceptive.
* Is there a representation, omission or practice that is likely to mislead consumers.
* Is the foregoing analysis conducted from the perspective of a reasonable consumer?
* Is the representation, omission or practice material, meaning is it likely to influence a consumer to take action?
* Are consumers likely to be injured if they take action.
2. Examine Puffery Claims for Potential Actionable Advertising Claims
Start your analysis by asking four questions to determine whether the puffery ad may require substantiation.
* Is the puffery claim objectively provable true or false?
* Does the puffery claim contain elements or attributes that are measurable?
* Does the puffery claim express an opinion that will be recognized by consumers as merely an opinion that may be discounted?
* Does the context of the related advertising campaign contain any of the foregoing.
* If any of the following questions are answered “yes”, it's not puffery (substantiation is required).
NAD: 3 Examples of Ads With Puffery by Exaggeration, Opinion and Imagery
What is NAD?
NAD defines its role in advertising: “NAD is an independent self-regulatory forum established by the advertising industry that reviews advertising in response to competitor challenges or on its own initiative, to examine the fit between the challenged claims and the substantiation provided.”
NAD closely follows FTC precedent and policy.
Why NAD's Puffery Podcast is Recommended
The NAD Podcast linked below provides in-depth discussion by NAD attorneys regarding three specific categories of puffery advertising taken from NAD cases.
In my experience, providing clients with lists of specific headlines, slogans, or taglines that have been rule as puffery has not been very instructive.
The reason lists are not instructive is that the context and reasoning for the rulings is required to really understand where the line between puffery and ad claims was determined.
The discussion among NAD attorneys is highly recommended because it reveals the context and reasoning for the rulings regarding puffery.
Listen to the NAD Podcast.
The Podcast is summarized below.
NAD Podcast Category 1: Puffery by Exaggeration
Puffery Example #1: Baby Formula
Advertiser's slogan: “Bring out the very best in your baby” was determined to be non-actionable puffery.
The challenger argued that the issue was “the very best” part of the slogan, specifically, that it was a superlative claim that would communicate to consumers “better ingredients than the competition”.
NAD based its finding of puffery on the following:
* The “Bring out the very best in your baby” slogan was visually distinct from other advertising messaging and standing alone, is non-comparative.
* “Best” does not apply to any specific product attribute, and therefore unlikely to be interpreted by consumers as comparative or fact-based.
Puffery Example #2: Energy Drink
Advertiser's tagline: “The Thirst Mutilator” was determined to be non-actionable puffery based on exaggeration and expression of pride such that a reasonable consumer would not think it is based on fact.
The setting for the tagline was in the form of a YouTube video (click Skip Ads if a YouTube ad appears).
Commentary: “The Thirst Mutilator” is very close to the line between puffery and an objective claim regarding the thirst-quenching properties of the energy drink that requires substantiation.
“Mutilator” could connote “thirst eliminator” or “thirst ender” that may be an objective claim (ad claim).
NAD Podcast Category 2. Puffery By Opinion
Puffery Example #1: Catsup
Advertiser's claim: “Better tomatoes make better catsup” was determined to be non-actionable puffery based on a finding that without more, the statement is non-actionable opinion.
The finding highlighted that where there are no measurable attributes relating to a comparison to a competitor's product in the statement, the statement is puffery.
Note: this finding was not long after the Papa Johns case discussed above and followed the reasoning of the Papa Johns case.
Puffery Example #2– Almond Milk
Advertiser's Tagline: “The best almonds make the best almond milk” was determined to be non-actionable puffery.
The determination was based on a finding that:
- The tagline only applied to a single ingredient that advertiser was most proud of and was not a comparative claim.
- The tagline did not reflect that the advertiser's product was better in any objective way, despite the challenger's argument that when the tagline was used in specific TV commercials there was reference to “taste” that would cause consumers to take away a comparative claim that the advertiser's product is objectively “better” or tastes “better” than the competition.
NAD Podcast Category 3. Puffery By Imagery
Puffery Example #1: Tomato Sauce
Advertiser's Image: a split screen showing 2 babies (toddlers 1-2 years old) eating spaghetti with tomato sauce. One baby was messy eating the spaghetti and tomato sauce (sauce all over the baby's face) and the other was only playing with the spaghetti and tomato sauce, and not eating it.
* The tomato sauce that was eaten was identified as the advertiser's sauce.
* The tomato sauce that was not eaten was identified as the competitor's sauce.
The competitor-challenger argued that the imagery conveyed a taste preference claim for young children, essentially that young children prefer the advertiser's tomato sauce.
NAD found that the advertisement was puffery, reasoning that consumers would understand that 1-year-olds who could barely talk would not take part in an actual taste test.
Puffery Example #2: Flea and Tick-Killing Product Used on Pets
Advertiser's Image: advertisement contained an animated depiction of little green ninjas in cartoon form killing fleas and ticks on pet animals.
The Challenger argued that little ninja creatures conveyed that the product works immediately upon application and kills all (not some) pests on the pet.
The advertiser argued that the image was merely a playful representation of how the product works, and that it was just puffery because consumers won't be thinking about what the ninjas are doing.
NAD found that the ad was puffery stating that “consumers are not in danger of believing that the product releases an army of ninja warriors on their pets from the advertising”.
2 Examples of Ads With Puffery by Humor
Another mistake from experience that I see when working with clients is that many believe if the ad is funny, then it must be puffery without further analysis. You should avoid this killer mistake.
As indicated above, humor can get you noticed and help give your advertising campaign lift, but it does not eliminate the need for analysis regarding the guidelines, examples and infographics presented in this article.
Puffery by Humor Example #1. Dollar Shave Club - Shick
The puffery claim at issue featuring humor was presented via a YouTube video (click Skip Ads if a YouTube ad appears).
Dollar Shave's Puffery Claims:
* Ad asks whether one “likes spending $20 a month on brand name razors, 19 of which go to Roger Federer”.
* Ad asks whether one needs features like “a vibrating handle, a flashlight, a back scratcher and 10 blades".
* Ad states “Your handsome-ass grandfather had 1 blade and polio” and suggests customers to “stop paying for shave tech you don't need.”
Competitor Shick's Arguments:
* Ad was an Implied false claim that Dollar Shave Club razors perform the same as higher priced competing products.
* Ad conveyed a falsely denigrating message about competing products.
NAD ruled in favor of Dollar Shave Club: Ad was a Puffery Ad
* Price Difference. Dollar Shave razors did not have all of the benefits of pricier razors, but questioned whether men need these added bells and whistles to get a good shave. There is no objective claim.
* F-Bomb. NAD looked at the intended audience of the ad in reaching the conclusion that reasonable consumers would not be confused.
* Comedy and Tone. “Notably, the comedic action and irreverent tone of DSC's video mirrors the sensibility of a generation for whom the affordability of a ‘value' brand is particularly appealing and consumer relevant. Such consumers will understand that the advertisement is not denigrating the advanced shaving technology offered by competitor products, but humorously questions whether such features are required or necessary for an effective shave.”
Puffery by Humor Example #2. Traeger - Char-Broil
The puffery claim at issue featuring humor was presented via a YouTube video (click Skip Ads if a YouTube ad appears).
Traeger's Puffery Claims:
* "The problem with propane, is when you cook with gas, food tastes like gas.”
* “This hot dog tastes like gas."
* “Dude is cooking food that tastes like gas.”
* "If you want food that doesn't taste like gas, try it on a Traeger."
* It's a puffery ad: food cooked on a propane grill “tastes like gas” in the context of its light-hearted, over-the-top funny commercial amounts to mere puffery because it is so outrageous that no reasonable consumer would take its claims seriously.
Competitor Char-Broil's Argument:
* Ad claiming that food cooked on a propane grill “tastes like gas” is not puffery, but, rather, unsupported, objectively provable (and falsely denigrating) taste claims.
NAD ruled in favor of Char-Broil: Ad was not a puffery ad.
* The claim at issue here is an express one – communicated in both language and via the facial expression of the party-goers – that food cooked on a gas grill (such as Char-Broil's) results in food that “tastes like gas” – that is to say, that use of propane imparts a distasteful flavor to the food
* This is an inherently objective, provable claim that requires reliable taste testing as support, and NAD noted that no such evidence was provided by the advertiser.
Blog Post Update: Dec 07, 2023
Is a Bigger Burger Image Puffery?
In 2022, a plaintiff filed a class action suit against Wendy's in a New York federal court alleging that Wendy's falsely advertised the:
* Appearance, and
* Content of its burgers.
Generally, product demonstrations, if they convey specific, objective claims, require substantiation for all express, comparative, and implied claims.
The issue: did Wendy's advertising claims, including the images of its burgers, qualify as puffery?
Short answer: YES!
Here's how it came down.
--> Plaintiff's Bigger Burger Allegation (Size)
The Plaintiff alleged that Wendy's materially overstated the size of their burger patties by using under cooked patties to make them appear larger that the patties actually served (fully cooked burgers tend to shrink in size).
The Court noted that Wendy's ads claimed: (i) “A quarter-pound of fresh beef”, and (ii) “Approximate weight before cooking”.
The Court ruled in favor of Wendy's since the burgers in ads and burgers served in stores contained the same amount of beef.
--> Plaintiff's Appearance Allegation (Appetizing Appearance)
The Court held that the ads conveyed puffery in that they were "exaggerations or overstatements that mention nothing specific, but rather amount to general claims of superiority expressed in broad, vague, and commendatory language that are considered to be offered and understood as an expression of the seller's opinion only."
--> Plaintiff's Content Allegation (Amount of Toppings)
The Court held that "Plaintiff's conclusory allegations that Defendants misleadingly depict the amount of toppings they serve, uncoupled from any description of the toppings he received, are not entitled to the presumption of truth and fail adequately to allege that Plaintiff was injured by Defendants' topping-related representations."
Bottom line, the Plaintiff failed to prove that a reasonable consumer would be misled by Wendy's ads that required substantiation (puffery does not require substantiation).
It's highly unlikely that an ad that shows an idealized version of a burger is going to confuse reasonable consumers.
Conclusion - Ads With Puffery
Ads with puffery are not only legal, they're not regulated (not actionable) under the Lanham Act, meaning there is no liability exposure for false advertising (provided that the puffery claim is really puffery).
The catch: staying on the puffery side of the line between puffery advertising and actionable ad claims, which can be tricky, particularly with ad campaigns featuring comparative advertising.
Because puffery in marketing is legal and safe to use, puffery should be a key marketing tactic.
One final experience-related insight and opinion from experience with clients: puffery advertising is often more effective advertising than with ad claims, particularly if you add humor.
The purpose of this article is to provide online advertisers with guidelines, examples and infographics to help with developing a working knowledge of how to use puffery advertising...
and to avoid common pitfalls of creating headlines, slogans and taglines that inadvertently cross the line and become actionable ad claims and false advertising lawsuits.
For informational purposes only. This article is no substitute for, is not intended to be, and shouldn't be relied upon as legal advice. Always seek the assistance of experienced legal counsel.
Do you have experience with puffery?
About the Author: Chip Cooper, Esq.
Wake Forest University School of Law: Juris Doctor Degree
Adjunct Professor of Law, Wake Forest University School of Law (20 years)
Awarded Martindale Hubbell's Highest Attorney Peer Rating - AV Preeminent®
Co-founder and CEO, FTCGuardian.com