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ANA Law Conference: ANA Discusses Line Between Falsehood, Puffery - MediaPost

Speaking at the Association of National Advertisers's Conference on Law and Business Monday, Deborah Platt Majoras, VP and general counsel for Procter & Gamble, set the tone for a presentation that would follow when she noted that the market has seen an increase in the filing of class-action suits that have nothing to do with suffering or illness.

"There are more no-injury class actions ... more money-damage class actions," she said. Though she was speaking of the likelihood that the Federal Trade Commission (FTC) will take an aggressive approach to enforcement, the point is just as relevant to the issue of truth in advertising, and the fine line between false facts and puffery.

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McDonald's was challenged by Subway in an ad that demonstrated, graphically, that a Big Mac has more fat than a Subway sandwich. While McDonald's declined to pursue, a consumer group took up the case. The National Legal and Policy Center asked the FTC to order Subway to stop its ads, which compared eating a foot-long Subway Club to eating a McDonald's Big Mac. The group said the ads claim "less fat," and they didn't disclose that the sub has "more sodium, carbohydrates, calories and sugar than the Big Mac." Subway discontinued the ad and told the FTC future ads would "include more prominent disclosures."

Leighton says puffery can be obviously false or obviously not demonstrable, but it's a claim that no reasonable audience would believe. "If it is not material to a consumer, it will be puffery, you can defend it as puffery. What is material: a claim that likely motivates an intended audience to purchase the product, not purchase a competing item, or recommend the item to a patient or to a customer."

Among examples was a print ad for White Castle hamburgers that he said centered on a claim that would qualify as puffery. In the ad, a giant foam "number one" hand at a sporting event holds a burger, and the headline reads "Number One Party Pleaser!"

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His advice: "The most effective way to get rid of an objectionable ad is if you have built up, over the years, a good business relationship with a peer at the competitive company," he said. "Chief executive to chief executive, marketing manager to marketing manager. If you know [your opposite] when something comes up, you can handle it informally because at each stage of formality, it becomes more difficult."

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