Puffery

Great, Greater, Greatest
By Paul A. Herbig

How many advertisements have you seen that indicate the company showcased is “the best”, “fastest”, “saves you the most” “number one with our customers,” “more for your money,” and so on and so on? How much do you believe? If you are like most consumers you do not take the claims seriously. You have just been besieged with an overdose of puffery.

Puffery is “advertising or other sales representations which praise the item to be sold with subjective opinions, superlatives, or exaggerations, vaguely and generally, stating no specific facts”. According to the court decisions, consumers expect exaggerations and inflated claims in advertising so reasonable people would not believe the statements broadcasted. Most people understand that advertisements take liberties with the truth. Most women understand they will not look like the model in commercials showcasing clothes, make-up, hair products, etc. Most men do not really think drinking XYZ will make them look like Arnold nor brushing their teeth with ABC toothpaste will cause the girls to flock to them.

.A company accused of false advertising when it claims to be “the best” can say it was just boasting. Only puffery claims that can be measured are truly liable. Puffery issues come up quite often at the FTC and the courts, dozens of times per year. Some claims that were declared eligible for public consumption included, “The world’s best aspirin,” by Bayer, “The earth’s most comfortable shoes,” by Hush Puppies, and “quality you can trust,” by Firestone (pre-fiasco to be sure).

The Uniform Commercial Code (UCC), a set of laws that govern sales and commercial matters, indicates a general statement praising the value of a product (“best” “great” etc) is considered puffery and does not create an expressed warranty of the product by the manufacturer. The UCC recognizes that advertisers cannot be expected to prove every general statement made concerning the product. More concrete and specific representations expressing size, ingredients, numbers, could provide an obligation on the manufacturer’s part. In essence, The more general and vague, the better (sic) and more legal it is. BMW has “The Ultimate Driving Machine.” Coke thinks it has “The Real Thing.” Visa is “Everywhere You Want to Be.”

For example, when Pizza Hut with its ads claiming, “Best Pizza Under One Roof,” sued Papa John over its slogan of “Better Ingredients, Better Pizza,” a federal court ruled in 2000 that although clearly puffery, Papa John could continue to pat itself on the back as long as it did not claim (or dropped saying) it had better dough and better tomato sauce. The burden of proof rests on the plaintiffs to assert a particular advertising claim is factually misleading rather than mere puffery. General and vague wins out every time over specific and quantifiable. In another court case, the statement, “ You meet the nicest people on a Honda,” was found to be puffery, rejecting a claim by a consumer that he was misled because he did not meet the nicest people on his Honda minibike with the determining issue the fact that any “reasonable” person would not mistake puffery as it wee for the truth.

Representative statements such as “increase profits by x%,” “ cut labor time by n minutes and saves z$,” “In business since 1947,” “ABC survey indicates . . .” are specific and measurable. Objective advertising claims must be supported by adequate substantiation. And as noted by the statements above, they are usually phrased in terms of fact rather than opinion and can be proven to be true or not.

So does that mean you as a marketer can puff to your heart’s content. Well, yes, as long as you don’t get into specifics. But what are you attempting to do? If no reasonable consumer actually believes puffery, what is the message you are sending? If customers, upon seeing puffery, think, “in one ear, out the other,’ and do not consider it further what have you accomplished? You may be able to proclaim “I am the Best,” and no one can legally challenge you but does anyone actually believe you? If you are a smart marketer, you will provide specifics, measurable, provable specifics, not puff. And that will set you apart from all the others puffing away happily ever after to oblivion.