False Advertising and Puffery

Post date: Oct 12, 2011 9:23:14 PM

Every day we see commercials on the TV or in print that attempt to gain our attention and, ultimately, persuade us to buy their product. This tactic is usually carried out by convincing us that their product is better than the competitor, or that our life is just not complete without their product. For the most part, a lot of the claims made in these advertisements fall into what is known as "puffery."

Puffery is defined by Wikipedia as "a legal term that refers to promotional statements and claims that express subjective rather than objective views, which no 'reasonable person' would take literally. Puffery serves to 'puff up' an exaggerated image of what is being described..." Although there are more thorough legal definitions of puffery, I think the Wikipedia version will be sufficient for today's exercise.

To me, I think the easiest way to distinguish between puffery and factual claims is to determine whether or not the statement can be proved to be true or false. When it comes to advertising, puffery is essentially an opinion being expressed by the manufacturer. So now let's take a look at some real life examples:

Seattle Best
Frosted Flakes

What do you think on this one? To me, there are two instances of puffery here: "Serving the Best" and the actual brand of "Seattle's Best." I'd say it is fairly obvious why these two phrases were chosen -- Starbucks is the coffee king of Seattle. So what better way to try and compete than make your brand claim that there is nothing better out there. Both of these claims are puffery, however, because -- based on my simple working definition above -- neither claim can be affirmatively proved or disproved, or they are simply opinions.Let's try another.So what about this one?The key phrase here is "They're Gr-r-reat!"Once again, this would fall under puffery. Not only is it an opinion, but good luck proving that they are not great. Seriously.Ok, so I feel as though we have a good grasp on what puffery is, right? Now let's move on to the whole reason I decided to write this post. Take a good look at this next picture and then I will share my thoughts after the jump.

Smirnoff Mo

Notice anything interesting here? In the abstract, the claim made in the advertisement (this is a screen shot I took from the commercial) should be construed merely as puffery. It would be hard to disprove that it is not the most liked vodka and it is tantamount to stating an opinion. That being said, we all know what the little blue "f" at the end of the statement means...

It means that they are citing to Facebook and the fact that Smirnoff has the most "fans" or "likes." Based on this, we have now moved out of the puffery zone and into verifiable facts. So I did a little investigating and here is what I found:Smirnoff US "likes" = 1,030,291 (as of 10/12/2011)Absolut "likes" = 660,556 (as of 10/12/2011)Grey Goose "likes" = 371,479 (as of 10/12/2011)SKYY Vodka "likes" = 149,406 (as of 10/12/2011)Based on the empirical numbers, it looks like the claim in the commercial is factually correct. Assuming that there is not another vodka on Facebook with more "likes" that I didn't find, Smirnoff can get away with making their claims -- puffery or not.

But, just for the sake of being litigious, what would happen if Absolut actually had more "likes"? Well, then Smirnoff would be looking at a potential suit for false advertising. Most courts recite the elements of a false advertising claim under the Lanham Act (essentially the trademark and unfair competition law) as follows:

    1. the defendant made a false or misleading statement of fact in a commercial advertisement about a product;

    2. the statement either deceived or had the capacity to deceive a substantial segment of potential customers;

    3. the deception is material, in that it is likely to influence the consumer's purchasing decision;

    4. the product is in interstate commerce; and

    5. the plaintiff has been or is likely to be injured as a result of the statement.

All right, I admit that not all of the above-listed elements are clearly met based on the instant hypothetical, but I think there is definitely an argument that could be made. The main elements that concern me are #2 and #3. With #2, I think it would be hard to show that the consumers were actually deceived by the statement in the Smirnoff ad. Furthermore, with #3 it would be difficult to establish that the deception actually influenced the consumer's purchasing decision. On this one, it essentially comes down to "did the consumers buy the vodka just because they thought it was the most liked?" Or, more informally phrased: "did you buy it just because you wanted to be cool/popular?" (author's note: if it were me and I were making decisions based on wanting to be cool and/or popular, I sure wouldn't be buying Smirnoff...but that's beside the point).

So what are we left with then? Not a whole lot. Smirnoff made a claim that could arguably fall outside of the protections granted for puffery but, at this time, the statement is true. That being said, if I were Absolut, I would start a promotion giving $5 off every bottle purchased if you "like" them on Facebook. Then, in a matter of a few weeks, they may have more "likes" than Smirnoff. And you know what that means! -- Absolut sues Smirnoff based on false advertising.

As a final note, consumers cannot sue a company based on false advertising under the Lanham Act (and, yes, I was personally curious). While the Lanham Act makes mention of "any person" being able to hold the false advertiser liable in a "civil suit," the courts have historically interpreted the Lanham Act as being created in order to protect persons engaged in commerce (i.e., businesses) against unfair competition. So no luck this time, folks.

Sources: Wikipedia, Franchise Law Journal (Spring 2002, Volume 21, Number 4), Lanham Act Section 43