Puffery

Puffery is a form of advertising in which a product or service is praised as being superior to all others like it, without any evidence to back up the claim. This is done for the sole purpose of attracting buyers that might not otherwise give the produce or service any attention. Puffery can normally be found in advertising or promotional materials about a specific product or service, though it is often employed by politicians and other people attempting to gain favor. Puffery is legal, so long as it does not escalate to what would be considered misrepresentation. To explore this concept, consider the following puffery definition.

Definition of Puffery

Noun

1. Undeserved or exaggerated praise; publicity consisting of such praise.

Origin

1892    English Court of Appeal (first use in a legal context)

Puffery in Advertising

Businesses typically use extravagant or showy language in order to “puff up” the product’s image. Puffery statements are usually subjective opinions, as actual factual statements. Puffery in advertising is legal because it is assumed that most reasonable people do not take such statements literally – that they understand that the burger being advertised is not literally “the best burger in the world” – a classic example of puffery. Puffery consists of broad, non-specific claims about a product, rather than factual representations that could be proven untrue, and get the company in trouble.

Puffery in advertising is legal because most courts consider it to be so obviously unreliable and shallow that it cannot really be considered grounds for liability. However, if the puffery works to misrepresent the product, or to tell customers an outright lie, the seller may be held liable by the customer for false advertising or fraudulent representation.

False advertising is very different from puffery. While puffery is thought of as expressing an exaggerated opinion in order to attract more customers, the goal of false advertising is to actually deceive or mislead the customer in order to get him to pay for a particular product or service. It must be proven that a statement or representation was intended to be deceptive, in order for a Court to find it was false advertising. If businesses wish to engage in puffery in advertising, they need to take care not to make statements that could be found in any way to be false, misleading, or deceptive.

Legal Ramifications of False Advertising

According to federal law, if a person or company engages in false advertising of a product or service, and someone is injured or financially harmed by relying on the information provided in the advertisement, the person or company has then committed a crime. Depending on the circumstances, the legal ramifications of false advertising could range from a $5,000 fine and imprisonment for a few months, to a fine of $10,000 or more, and imprisonment for up to one year.

The law specifically states that publishers, radio-broadcast licensees, and agencies or mediums who distribute the advertisements are exempt from this law, unless they refuse to cooperate in providing the information for the “manufacturer, packer, distributor, or seller” who provided them with the false information in the first place.

What is a Puff Piece

A puff piece is a newspaper article or a segment on a television show that uses exaggerated praise to promote something or someone – typically a celebrity, book, or event. A puff piece also tends to ignore any negative viewpoints, information, or evidence, in favor of blatant promotion of the person, event, or item.

Sometimes even just the review of a product or service can be considered an example of puffery because of the assumed bias – whether real or imagined – on the part of the reviewer. This is because people just assume that if someone is writing favorably about a product or service, he or she is likely saying those things because they are being paid to. The opposite is also true, however. If a reviewer writes negatively about a product or service, it may be assumed he is doing so because he is being paid to do just that.

Puff pieces are recognizable by the specific words used within them to describe a product or service. These words are called “peacock terms” because they are unsubstantial, and are only there to grab the reader’s attention. Terms and phrases such as “amazing,” “one of the most important products,” and “one of the leading brands” are considered tabloid-style filling puffery that does nothing to help the reader understand the qualities or value of the product or service.

Puff pieces are commonly written to promote or sensationalize health topics. Providers of alternative medicine in particular often promote puff pieces, as this is one way to praise a product and provide it with a stellar reputation when, in actuality, the product is ineffective. This is a way of getting around the fact that they cannot make claims about the actual products, lest they be charged with engaging in false advertising.

Puffery Example in Oil Company Conflict

An example of puffery being litigated in the judicial system can be found in the case Castrol Inc. v. Pennzoil Co. (1992). Here, the Pennzoil Company developed a series of five television commercials that featured professional athletes and race car drivers. The company claimed, in these commercials, that their brand “outperforms any leading motor oil against viscosity breakdown.” Castrol complained that “this claim of product superiority is false,” and that:

“Castrol motor oils equal or exceed Pennzoil’s products according to every industry standard of viscosity breakdown. In fact, in industry approved laboratory tests, two of Pennzoil’s three leading brands of motor oil failed even to pass the most demanding test of viscosity breakdown protection.”

Castrol also claimed that Pennzoil’s commercials promoted the “false and misleading message” that Pennzoil’s motor oils were better at preventing engine failure than other motor oils on the market, due to their ability to offer “longer engine life” and “better engine protection” than their competitors. Castrol complained that these claims were “baseless” and that there was “no proof” that customers would experience these issues if they used any motor oils other than those made by Pennzoil.

Castrol called Pennzoil’s commercials “false, misleading, and deceptive,” and complained that they were “in violation of federal and New Jersey law.” Castrol requested an injunction in order to prevent the defendants from broadcasting the commercials, and from making similar claims in the future. The United States Court of Appeals found in favor of Pennzoil, ruling that the company had engaged in nothing more than puffery and was therefore not guilty of false advertising.

Complaint of Puffery in Product Labeling

In 2007, Coca-Cola Company announced a new product – a juice blend that was boldly labeled “POMEGRANATE BLUEBERRY” juice. The California-based grower of pomegranates, POM Wonderful, LLC had been selling various types of juice for years before Coca-Cola’s release of this new product. In 2008, POM Wonderful filed a federal lawsuit against Coca-Cola, claiming that Coca-Cola engaged in false advertising, by intentionally leading customers to believe that their new juice contained primarily pomegranate and blueberry juices.

In actuality, 99% of the juice in Coca-Cola’s blend came from apples and grapes, leaving only 0.5 percent for pomegranate and blueberry juices. POM accused Coca-Cola of violating Food and Drug Administration (“FDA”) regulations for labeling food products, as well as the Lanham Act, which is a federal law that prohibits false advertising.

The district court held that POM’s claims were barred by the Food, Drug and Cosmetics Act (“FDCA), which allows the FDA to regulate the labels of food products, including juices. Because the FDA is entrusted to file claims with regard to FDCA violations, the Court feared that making a decision under the Lanham Act would step on the FDA’s toes in their regulation of juice labels. POM appealed the decision, but the U.S. Court of Appeals also affirmed the lower court’s decision to bar POM’s claim on the name and label issues.

When the case reached the Supreme Court, the Court reversed the barring of POM’s claims. The Court determined that neither the Lanham Act nor the FDCA forbids or limits claims made against labels regulated by the FDCA. The Court noted that the Lanham Act and the FDCA have operated in perfect harmony since the Lanham Act was passed in 1946, and Congress has never felt the need to address the potentiality that both regulations could one day end up influencing the same case.

On that note, the Court found that the lower courts’ decisions that the FDCA prevents the Lanham Act from being properly implemented would show a complete disregard for the initial intent of the Lanham Act. The Court explained that the two statutes were meant to complement one another, not to be pitted against each other. This decision was a major victory for POM, as it allowed the company to pursue all of its claims against Coca-Cola, including those pertaining to labeling and naming of the juice product. It also set a precedent for future litigation by companies that feel their competitors are using trickery to influence customers into buying their products.

Related Legal Terms and Issues

• Fraudulent Misrepresentation – The intentional telling of a falsity, or providing an otherwise misleading statement.
• Injunction – A court order preventing an individual or entity from beginning or continuing an action.
• Precedent – A rule or principle established by a court, which other courts are obligated to follow.