Use of Puffery in Advertising
September 1, 2004
Puffery: An Overview
The use of puffery claims in advertising is an ongoing ethical and legal issue for advertisers because puffery claims, unlike objective advertising claims, do not have to be substantiated. The law requires that only objective advertising claims be supported by substantiation. An objective claim generally addresses performance, efficacy, sales, or other tangible attributes related to the advertised product or service. An objective claim is usually phrased in terms of fact rather than opinion and is capable of being measured and proven. Puffery, by contrast, is generally viewed as advertising that expresses vague and subjective opinions that are incapable of being proven or substantiated. Puffery often includes exaggeration and the use of superlatives such as "the ultimate" and "the best."
In general, puffery claims are not actionable, unless the claims are combined with other claims or information that makes the puffing untrue or misleading. While puffery is a completely acceptable form of advertising, a thin line often exists between puffery and deception. The substantive difference between objective claims and puffery claims is significant from a legal perspective because if a claim is mere "puffing," the advertiser does not have to provide substantiation for the claim. Further, puffery is a defense to a claim of false advertising.
Courts have addressed the issue of puffery many times. The Third Circuit has described puffing as "advertising 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 (3d Cir. 1990). The Ninth Circuit has defined puffing as "exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable under 43(a)." Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997)(citation omitted). The commentator on trademark law, Thomas McCarthy, describes puffery as "exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely," and explains that puffery is a defense to a false advertising claim. See, J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition § 27.38 (4th ed. 2002).
In America Italian Pasta Co. v. New World Pasta Co., 371 F3d 387 (8th Cir. 2004), the court discussed the difference between nonactionable puffery and statements of fact capable of being substantiated:
Puffery and statements of fact are mutually exclusive. If a statement is a specific, measurable claim or can be reasonably interpreted as being a factual claim, i.e., one capable of verification, the statement is one of fact. Conversely, if the statement is not specific and measurable, and cannot be reasonably interpreted as providing a benchmark by which the veracity of the statement can be ascertained, the statement constitutes puffery. Defining puffery broadly provides advertisers and manufacturers considerable leeway to craft their statements, allowing the free market to hold advertisers and manufacturers accountable for their statements, ensuring vigorous competition, and protecting legitimate commercial speech.
The discussion by the court in American Pasta highlights the importance of puffery to advertising and the marketplace. Allowing advertisers to make puffing claims promotes competition. In addition, puffing claims also help provide certain protections for commercial speech. If puffery were not allowed, or if it were significantly restricted, the First Amendment rights of advertisers and the promotion of competition in the marketplace would be significantly hindered.
Pizza Hut v. Papa John's Int'l, USA, 227 F3d 489 (5th Cir. 2000)
This case has focused attention on the use of puffery and has since been cited by many courts. Pizza Hut brought suit against Papa John's, alleging that Papa John's slogan "Better Ingredients. Better Pizza." was deceptive and misleading. Pizza Hut claimed the slogan falsely implied that Papa John's ingredients were fresh, while the ingredients used by other pizza chains were not fresh. Papa John's responded by arguing that the advertising slogan was puffery. The lower court prohibited Papa John's from using "better" to describe its pizza, holding that the company could not prove that it used fresher and tastier ingredients than Pizza Hut. By mentioning rival Pizza Hut in certain ads, the lower court held that Papa John's Pizza had created a context in which the slogan was no longer puffery.
The appellate court vacated the lower court's judgment and directed an order in favor of the defendant. The court held the slogan alone "Better ingredients. Better pizza" was simply "a general statement of superiority of its product over all others." The court then considered whether the context in which the slogan was used-- comparative advertising-- "tainted the statement of opinion and made it misleading under [the Lanham Act]." In its analysis, the court considered specific ads in which Papa John's referenced the sauce and dough in Papa John's pizza. The court concluded that these additional claims made the ads misleading:
Consequently, a reasonable consumer would understand the slogan, when considered in the context of the comparison ads, as conveying the following message: Papa John's uses "better ingredients," which produces a "better pizza" because Papa John's uses "fresh-pack" tomatoes, fresh dough, and filtered water. In short, Papa John's has given definition to the word "better." Thus, when the slogan is used in this context, it is no longer mere opinion, but rather takes on the characteristics of a statement of fact. When used in the context of the sauce and dough ads, the slogan is misleading for the same reasons we have earlier discussed in connection with the sauce and dough ads. The court ultimately held that the misleading statement was not material to any consumer and therefore did not violate the Lanham Act.
The Papa John's decision is significant for two reasons. First, the court held that the slogan alone "Better Ingredients. Better Pizza." without any qualification or additional facts constituted unactionable puffery. This holding confirms that a general claim of superiority over comparable products that is so vague that it can be understood as only an expression of opinion is puffery. Second, the Papa John's holding is often cited for the proposition that a puffery claim, in certain contexts and when combined with other more specific claims, can be misleading and therefore be potentially actionable.
American Italian Pasta Co. v. New World Pasta Co., 371 F3d 387 (8th Cir. 2004) (Discussed above)
The defendant, New World Pasta, placed the phrase "America's Favorite Pasta" on its pasta packaging. The trial court concluded the phrase "America's Favorite Pasta" constituted non-actionable puffery. The appellate court found that the phrase "America's Favorite Pasta," standing alone, was not a specific, measurable claim and could not be reasonably interpreted as an objective fact. Also, viewing the phrase in the context in which it was used, the court found that the phrase was not transformed into a statement of fact. Nothing contained on the packaging in connection with the phrase conveyed a standard by which the truthfulness of the manufacturer's statement could be measured. In short, the defendant did not give meaning to the word "favorite" by referencing specific ingredients or attributes about its product. Thus, the claim was held to be nonactionable puffery.
Maharishi Hardy Blechman Ltd. v. Abercrombie & Fitch Co., 292 F. Supp. 2d 535 (S.D.N.Y. 2003)
The plaintiffs, clothing designers, brought suit against the defendants for trade dress infringement and unfair competition under the Lanham Act, alleging that the defendants borrowed heavily from plaintiff's line of high-end, military-style pants. The plaintiff alleged that the defendant's label on its pants "Our Most Original Pant Since 1892 ... Pure Abercrombie & Fitch design and fit" constituted false advertising. The court disagreed, finding that the claim was "obvious puffery" because "there is no way to prove that one pair of Abercrombie pants is more or less "original" than another pair of Abercrombie pants." The court further held that "there is no way to prove to what extent the design and fit of Shi Dings is "pure" or "impure." Id. The court found no merit to any of the plaintiff's other claims and granted the defendant's motion to dismiss.
Cytyc Corp. v. Neuromedical Sys. Inc., 12 F. Supp. 2d 296 (S.D.N.Y. 1998) (lab machine's claim of "unprecedented clarity" held to be non-actionable puffery)
In re Boston Beer Co., 198 F.3d 1370, 1372 (Fed. Cir. 1999)(stating that the phrase "The Best Beer in America" was "trade puffery" and that such a general claim of superiority "should be freely available to all competitors in any given field to refer to their products or services.")
Atari Corp v. 3DO Co., 1994 U.S. Dist. LEXIS 8677, 1994 WL 723601, *2 (N.D. Cal. 1994)(stating that a manufacturer's slogan that its product was "the most advanced home gaming system in the universe" was non-actionable puffery)
Nikkal Indus., Ltd. v. Salton, Inc., 735 F. Supp. 1227, 1234 n.3 (S.D.N.Y. 1990)(stating that a manufacturers claim that its ice cream maker was "better" than competition ice cream makers is non-actionable puffery)
T-Mobile USA, Inc. (2004): As part of its routine monitoring program NAD requested substantiation for certain comparative pricing plans by T-Mobile USA, Inc. made in a television commercial. One of the slogans was "T-Mobile, get more." Considering the claim, the NAD pointed out that "it is well-established that a slogan cannot be viewed in isolation and that if it links a general claim to a specific product attribute, the claim must be substantiated." The NAD noted that the slogan "get more" appeared in advertising that centered on monadic claims that referenced T-mobile service plans and products. In these contexts, the NAD determined the slogan did not make a comparative claim and therefore constituted puffery.
iOwn, Inc. (1999): E.Loan challenged certain newspaper, television, and Internet advertisements by iOwn for its on-line mortgages. The advertisements included the tagline "iOwn: the Best Loans Online." E.Loans asserted that the tagline constituted a broad, unqualified superiority claim against all other on-line providers of mortgage services. The advertiser counter argued that the word "best," as it appeared in the advertising, was a vague and general expression that was not tied to any specific factual claims. The advertiser further argued that the claim was not capable of being proven and therefore constituted puffery. The NAD agreed with the advertiser, but was careful to note that "depending on the context in which the claim appears, 'best' clams can be provable/disprovable substantive claims or puffery." Because the tagline never appeared with any specific, verifiable assertions of superiority or any comparison claims, the tagline was puffery. The NAD concluded that the tagline would be reasonably interpreted by consumers as iOwn's opinion of its services.
Practical Suggestions for Making Puffery Claims
- Use statements that are vague and express opinions
- Use statements that are incapable of being substantiated (i.e., "Made from the best stuff on earth.", "America's Favorite Pasta")
- Do not combine puffery claims with more specific claims about the product or service being advertised so as to "transform" the puffery claim into a statement capable of being proven (i.e. as in the Papa John's case where the court held that specific references to certain ingredients gave "definition" to the word "better")
- Do not combine puffery claims with comparative claims regarding a competitor's product or service.
Douglas Wood, Partner, Reed Smith LLP and ANA General Counsel, September 2004.