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Direct Response Marketing

Legal Review: Huffing and Puffing Can Blow Your House Down

1 May, 2017 By: Roger A. Colaizzi, Christopher S. Crook Response


“That claim doesn’t mean anything. It’s just puffery.” It’s a common saying in marketing departments. In many cases, puffing — advertising claims that are not measurable and of the type upon which consumers would not normally rely — can be a powerful tool to build a brand’s image, while also entertaining consumers.

These types of claims have a way of sticking in consumers’ minds. One memorable example: Nike’s Air Jordan slogan, “It’s gotta be the shoes!”

To some extent, today’s consumers have grown accustomed to and even expect entertainment in advertising. But despite the potential for creating a lasting memory in consumers’ minds, puffing is not without its dangers.

The dream of the perfect puff can turn into a nightmare when a court finds that the claim is measurable and requires substantiation. Whether or not an advertiser intended to communicate a particular advertising claim has no bearing on liability for false advertising. And, as recent cases have shown, false advertising is a strict liability offense, making the calculus of whether an ad claim is puffery versus something that needs to be substantiated more important than ever.

The origins of the term “puffery” in the legal context date back to an 1893 English Court of Appeal case involving a manufacturer’s promise to compensate customers with £100 if they were to contract the flu after properly using the Carbolic Smoke Ball — a rubber ball with a tube that allowed users to inhale carbolic acid vapors to purportedly prevent disease.

Eventually, a consumer sued after the company refused to reimburse the customer who contracted the flu. During trial, the manufacturer defended its claims by arguing such statements were “mere puff” and not meant to be construed literally. Though the three-judge panel ruled against the manufacturer, the decision endorsed the idea that traditional rules relating to promises might not apply to ads that were not meant to be taken seriously. Thus, the notion of puffery was born.

In the modern era, where commercial transactions are significantly more complex, courts are still willing to allow parties to rely on the puffery defense. However, a considerable lack of clarity remains about the legal boundaries of the puffery debate. For instance, the U.S. Court of Appeals for the Third Circuit defines puffery as marketing “that is not deceptive, for no one would rely on its exaggerated claims.” Similarly, the Ninth Circuit labels puffery as “exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely.” The Fifth Circuit established a more exacting meaning, defining puffery as “a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.” The Federal Trade Commission (FTC) also established its own definition of puffery, limiting defense to claims “that ordinary consumers do not take seriously.”

In Tempur Sealy Intl. Inc. v. WonderGel LLC, a Kentucky district court granted a temporary restraining order and preliminary injunction against WonderGel, due to “likely false or misleading statements under the Lanham Act” that were featured in its “Goldilocks” commercial.

WonderGel’s online mattress commercial featured a Goldilocks character making disparaging comments about a Tempur Sealy mattress. When the Tempur Sealy mattress appeared in the commercial (although not identified by name), Goldilocks suggested to the audience that the mattress causes shoulder pain, is “rock hard,” puts pressure on your hips, and may cause arthritis.

In defense of its commercial, WonderGel argued that the commercial was permissible comedy, and that the statements made should be considered mere puffery. The court rejected this argument, noting that (1) it was “unaware of any ‘humor exception’ that would make literally false statements acceptable under the Lanham Act”; and (2) “statements regarding potential negative health effects” of a competitor’s product are clearly unacceptable forms of advertising. Furthermore, even though the Tempur Sealy mattress was unnamed throughout the commercial, the court determined that Tempur Sealy’s trade dress was sufficiently recognizable such that viewers would recognize it. Though WonderGel removed the “Goldilocks I” video, it posted a modified “Goldilocks II” ad, the parties settled the case before the court decided on Tempur Sealy’s motion for contempt.

Regardless of your intent, advertisers should keep this strict liability standard in mind when developing claims they plan on categorizing as puffery. ■


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