Advertisements for your businesses should paint you in the best possible light, however marketing teams need to be wary of exaggerated claims that may mislead consumers. Using captivating language and sales puffery can help increase awareness from competitors and consumers alike, however, companies need to be abide by certain rules when making statements to represent their product or service. There is a thin line between what is considered a ‘mere puff’ and what is classified as misrepresentation in a court of law. This Business Kitz article will provide the do’s and don’ts of puffery advertising and draw the line for you so you can ensure your business stays well behind it.
What is puffery?
No, it’s nothing to do with winter attire. While it may sound like some harmless fun; puffery can make or break your advertising and could hurt your brand reputation, being particularly detrimental to a small business. Puffery refers to a vague or wildly exaggerated advertising claim that any reasonable person would not take to be the truth. Examples of puffery advertising might include the claim “better ingredients” or “the BEST steaks in the WORLD”, which is reasonably considered to be a flamboyant exaggeration or opinion and not misleading or false advertising. The slogan for the drink Red Bull, that it “gives you wings”, is also generally not going to be taken literally. The tricky element is that under law, it does not matter whether there was an intention to make a false or misleading statement or not.
So should businesses’s not just rely on including an objective fact about a product or service rather than over-exaggerated advertising claims or subjective statements to avoid legal liability? While this is the low-risk option, puffery can in fact be beneficial to a business as it often involves an advertising slogan with power words and presents an emotional appeal to customers that can garner a higher return on investment than a less ‘interesting’, lower quality advertisement.
The grey area between puffery and misleading statements
For the sake of a brand’s reputation, businesses need to be aware of the grey area between puffery in advertising and misleading claims to avoid fines or a lawsuit over their services. The courts and the federal trade commission use three criteria to distinguish puffery, or legal advertising, from false advertising claims:
- Is the statement more of an opinion or fact?
- Is the claim specific (more factual) or general (vague)?
- Is the statement measurable?
A claim that does not meet the legal standard and cannot be scientifically proven will generally be considered puffery that is non-actionable. Therefore, it’s always better to make either an objective claim or general claims that avoid specific promises that can measured, proven against facts that could potentially bring up a legal matter. Using comparative and premium claims in an advertisement to promote a special quality about a service over competitors is also legal, as long as it is accurate and can be substantiated.
Fine print and disclaimers
A company cannot rely on fine print and disclaimers that would not be immediately apparent to a consumer to support or excuse a false statement. Statements that need to be qualified should be clear to the consumer, i.e if a partial fee is involved, the ad should not include the term ‘free’ in the main heading to avoid legal disputes.
Examples of sales puffery in the real world
Across certain industries there have been cases where a claim has constituted false advertising and ended in serious lawsuits and a damaged brand image. The first case that established puffery as a legal concept was the Carlill v Carbolic Smoke Ball English Court of Appeal case in 1893, where the product was a flu remedy labelled the ‘carbolic smoke ball’. The Carbolic Smoke Ball company advertised that:
“100 pounds reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks”
Mrs Carlill used the product as per the instructions, caught the flu and subsequently claimed the reward, which was refused by the company, claiming that the advertising was mere puffery and there was no breach of contract. It was held in court that the defence of defined puffery was not adequate and Mrs Carlill was entitled to the reward as there was a valid offer, the language used was not too vague and the company had shown sincerity with a deposit of £1,000. When we look back at the criteria used to prove false claims in ads, the statement most certainly ticked the third box for being measurable, by £1,000 in fact.
Papa John’s v Pizza Hut: “Better Pizza”
Another example is the case where the pizza chain Papa John’s used the slogan “Better Ingredients. Better Pizza”, also referencing the quality of competitor brand Pizza Hut. Pizza Hut sued Papa John’s for false advertising and claims that were presented as objective. They were unsuccessful in claiming misrepresentation and the court determined that a bragging-heavy slogan was not considered to be false advertising or anything particularly extraordinary in the world of marketing.
While marketers should not hold back on creativity in their advertisements and connecting with consumers, it is necessary to be aware of how bold your claims can be and when to back them up with proven evidence. Business Kitz have a variety of templates and services to guide your legal or advertising agreements! If you need assistance to promote and maintain a reputable brand image while legally implementing puffery advertising, we recommend seeking legal advice through our sister company, Legal Kitz. You can book a free 30-minute consultation with their experienced and highly qualified team via our website now.