Who’s ‘The Best’? The Legal Parameters of Puffery10 Sep, 2013 By: Gregory J. Sater
People often say something is “just puffery” without really knowing the legal parameters of that term. If you’re looking for a primer on what puffery is, or isn’t, then an NAD case from last month is worth reading. In the case, Campbell Soup, the maker of V8 fruit and vegetable juice, challenged a television commercial for a competing juice sold by Tropicana.
In Tropicana’s commercial, the voiceover said: “If you want the world’s best fruit and vegetable juice, look in the cooler.” After that, it showed several shelves of other companies’ juice products crashing to the floor, after which it stated: “Introducing Tropicana Farmstand.”
Was it puffery for Tropicana to refer to its juice as “the world’s best” while showing other juice products crashing down from shelves onto the floor? I can hear many of you saying “Yes, of course it’s puffery!” and you would be right. That is how the case came out, but actually the answer to the question is not as obvious as you might think.
A claim that a given product is the “best” may or may not be puffery depending on the context in which the word “best” is used. If the word is used in conjunction with other content that suggests that the product is better in a specific way – a way that could be measurable – it isn’t puffery. For example, had this commercial talked about how Tropicana’s juice tastes good (which it didn’t) then saying it was the “world’s best” fruit and vegetable juice could have created a claim of superiority as to taste. That would have been a claim requiring substantiation.
Puffery is a claim which is not capable of measurement and/or which a reasonable consumer would never take seriously. Here, the NAD concluded that the commercial did not communicate any specific message of superiority that would require substantiation – it was mere puffery.
The NAD reached this decision despite a survey that had been submitted by the challenger, Campbell Soup, which had concluded that more than 50 percent of the survey respondents believed the Tropicana commercial expressed some sort of superiority for the juice. The NAD said the survey contained too many flaws to be reliable.
The survey found certain small percentages of respondents who had taken away various different specific messages of superiority. For example, 13 percent said they had taken away a message that Tropicana’s product was fresher; 7 percent said they had taken away a message of superiority as to taste; 6 percent said they had taken away a message that it was healthier, etc. The challenger had added up these various small percentages to say more than 50 percent had taken away a superiority claim. But the NAD said these survey results could not be aggregated in that way. The NAD also said that the survey should have had a control to test against pre-existing beliefs or other background “noise” that could have skewed the numbers.
There are other, somewhat older NAD cases worth reading on this subject, including several where the outcome was just the opposite and where puffery was not found. For example, in an NAD case involving Vick’s Nyquil, the word “best” was combined with a statement about product efficacy – specifically, efficacy in helping one get a good night’s sleep. That’s not puffery. In a case involving Freschetta Frozen Pizza, a “Freschetta is better” claim was made in the context of an ad that listed specific attributes about the pizza crust used in the “better” product. Again, that’s not puffery. In a case involving Promax Protein Bars, the word “best” was combined with the concept of taste, thereby communicating a message of “best tasting.” All together now: not puffery. All of these were found to be claims capable of measurement and therefore requiring substantiation.
In conclusion, for puffery, context is everything and the legal analysis is not quite as simple as you might have thought. Nevertheless, if you are in agreement with me that this article is the world’s best article on the subject of puffery, please let me know.
Gregory J. Sater is a partner in Venable LLP‘s Advertising, Marketing and New Media Group. He can be reached via E-mail at firstname.lastname@example.org.