Practical Guidance®

Puffery in Advertising
A Practical Guidance® Practice Note by Neema Amini, Amini & Conant, LLP

recent cases furthering a trend in which courts determine

that advertising claims—which might normally be considered
puffery—actually require substantiation because the court
found that they are measurable as part of comparative
Neema Amini advertising claims. This practice note seeks to shed some
Amini & Conant, LLP light on that calculus. For more information regarding claim
substantiation, see Advertising and Marketing Claims —
This practice note discusses puffery, its genesis, current Claim Substantiation and Claim Substantiation Checklist.
meaning, and recent case law regarding how courts
distinguish puffery and comparative advertising. This
practice note also briefly addresses how the Federal Trade What Is Puffery?
Commission (FTC) and National Advertising Division of the
Puffery is a legal term that first came about in an 1893
Council of Better Business Bureaus (NAD) considers non-
English Court of Appeal case: Carlill v. Carbolic Smoke Ball
actionable puffery.
Co. 1 Q.B. 256 (Court of Appeal, 1892). The case centered
For more information regarding puffery in advertising, on the Carbolic Smoke Ball Co.’s advertising of its “smoke
see Advertising and Marketing Claims and Distinguishing ball” product—a rubber ball with a tube that allowed
Advertising Claims from Puffery Checklist. users to inhale carbolic acid vapors, which the company
claimed was a cure for influenza. Carbolic promised to give
Advertisers strive to grab their target audience’s customers £100 (a large amount at the time) if they came
attention with bold advertising assertions made without down with the flu after properly using the smoke ball.
substantiation. But there is a thin line that separates
actionable advertising from permissible exaggeration— Eventually, Carbolic got sued by a customer who took
commonly referred to as “puffery.” Companies can be held them up on their offer and got the flu—and Carbolic
liable for false advertising, but puffery—that is, advertising refused to pay the £100. At trial, Carbolic claimed that the
claims that are not measurable and are therefore not statements they had made were “mere puff” and not to be
normally relied upon by consumers—is not actionable. So, a taken literally. They lost the case, but the English Court’s
diner advertising the “World’s Best Cup of Coffee” cannot decision endorsed the notion that traditional rules relating
be successfully sued for false advertising even though the to promises might not apply to advertisements that were
coffee tastes horrible. clearly not meant to be taken seriously. The legal defense
of puffery was born.
Calling something puffery is easier said than done. Whether
or not an advertiser intended to communicate a particular In the United States, puffery became a more prevalent
advertising claim has no bearing on liability for false legal defense when courts began to apply a caveat emptor
advertising, which is a strict liability offense. To make things approach to commercial transactions. For example, in 1918,
harder, the applicable legal standards are ever-evolving, with the U.S. Court of Appeals for the Second Circuit in Vulcan
Metals Co. v. Simmons Manufacturing Co., 248 F. 853 (2d • Whether the deception is material, in that it is likely to
Cir. 1918), allowed a company to use a “puffing” defense, influence the consumer’s purchasing decision
holding that consumers already naturally distrust marketing • Whether the plaintiff has been or is likely to be injured
slogans. The court found that customers have equal means as a result of the statement at issue
of knowing or inspecting a product before purchasing it. In
that case, American judge and judicial philosopher Learned Additionally, the statements must be verifiable and “capable
Hand opined: of being prove[n] false” by scientific methods. Statements
that do not meet the standard above, and cannot be
There are some kinds of talk which no sensible man scientifically proven, are likely to be classified as non-
takes seriously, and if he does he suffers from his actionable puffery.
credulity. If we were all scrupulously honest, it would
not be so; but, as it is, neither party usually believes
what the seller says about his own opinions, and each
Case Study – Pizza Hut v.
knows it. Such statements, like the claims of campaign Papa John’s
managers before election, are rather designed to allay
the suspicion which would attend their absence than to Despite the standards enumerated above, discerning
be understood as having any relation to objective truth. puffery from false advertising is tricky work. A well-known
It is quite true that they induce a compliant temper in (and oft-cited) example of this was apparent in Pizza Hut,
the buyer, but it is by a much more subtle process than Inc. v. Papa John’s International, Inc. Pizza Hut, Inc. v. Papa
through the acceptance of his claims for his wares. John’s Int’l., Inc., 227 F.3d 489 (5th Cir. 2000). Pizza Hut
sued Papa John’s because of Papa John’s $300 million
Over 100 years later, courts are applying this doctrine of national marketing campaign that revolved around Papa
“puffing” or “dealers’ talk” to a variety of claims. John’s slogan, “Better Ingredients. Better Pizza.”

Puffery Today Pizza Hut challenged not only the slogan itself—which it
argued was false advertising—but further claimed that Papa
Today, the legal definition of puffery differs somewhat John’s entire marketing campaign was false advertising due
from jurisdiction to jurisdiction. The U.S. Court of Appeals to its disparaging representations of the competition’s (Pizza
for the Third Circuit, for instance, defines puffery as Hut’s) food quality. Papa John’s marketing campaign made
marketing “that is not deceptive, for no one would rely multiple assertions comparing the quality of its product to
on its exaggerated claims.” The Ninth Circuit describes its competition’s product, such as an ad that claimed its
puffery as “exaggerated advertising, blustering and boasting pizza dough was made with “clear filtered water” while its
upon which no reasonable buyer would rely.” Meanwhile, competitors (including Pizza Hut) used “whatever comes out
The Fifth Circuit defines puffery to be “a general claim of the tap.” At the conclusion of the trial, the jury decided
of superiority over comparable products that is so vague that, although Papa John’s advertisements were true, they
that it can be understood as nothing more than a mere were actively misleading to consumers. The trial court held
expression of opinion.” that the misleading statements “tainted” Papa John’s slogan
and enjoined them from continued use.
Generally speaking, claims that a product is “incredible” or
“best quality,” to name a few, will usually be seen as “mere Papa John’s decided to appeal the decision to the U.S.
puff.” However, when exaggerated marketing claims move Court of Appeals for the Fifth Circuit. In their appeal, they
closer to something that can be measured, advertisers risk argued “Better Ingredients. Better Pizza.” constituted non-
that the claim will be considered actionable false advertising actionable puffery. The Fifth Circuit agreed, concluding
under the Lanham Act. More specifically, Section 43(a) of that the slogan by itself was not a claim customers could
the Lanham Act establishes the standard under which false justifiably rely on because it concerned subjective taste
advertisement claims are reviewed. This standard consists of and was not able to be objectively and scientifically
the following questions: verified. The court also held that the slogan “epitomizes
the exaggerated advertising, blustering, and boasting by a
• Whether the advertiser made a false or misleading manufacturer upon which no consumer could reasonably
statement of fact about a product rely.”
• Whether the misrepresentation of fact deceived or had
the capacity to confuse the general public
Nevertheless, the court upheld the jury’s finding that the that the particular attribute or feature can only be found
slogan was misleading when taken in context with the in its product.” See Stokely-Van Camp, Inc. v. Coca-Cola
entirety of Papa John’s marketing campaign. The Fifth Co., 646 F. Supp. 2d 510, 526 (S.D.N.Y. 2009).
Circuit ruled that, when viewed in combination with Papa
John’s dough and sauce ads (such as the filtered-water Puffery and Comparative
Advertising
claim), the slogan changed from non-actionable puffery
into a quantifiable statement of fact regarding the relative
quality of its ingredients.
When advertising exaggerations are obvious and outlandish,
Thus, an otherwise unverifiable slogan that on its own puffery defenses are more certain. Such was the case in
stood as non-actionable puffery—”Better Ingredients. Martin v. Living Essentials, LLC, 653 F. App’x 482 (7th Cir.
Better Pizza.”—became effectively tainted “as a result of 2016), in which the Seventh Circuit affirmed the district
its use in a series of ads comparing specific ingredients court’s holding dismissing false advertising claims brought
used by Papa John’s with the ingredients used by its by the individual world-record holder for consecutive
competitors.” This case highlights the complexity to applying kicks of a Hacky Sack. The case involved a commercial
puffery to real-life situations (and advertising campaigns)— advertisement by 5-hour ENERGY that depicted a person
specifically demonstrating how the most obvious puffery who had disproved the theory of relativity, “mastered
can be transformed into a false and misleading statement origami while beating the record for Hacky Sack,” swam the
under the Lanham Act, particularly when puffery is English Channel, and found Bigfoot all within the span of
used in a marketing campaign that features comparative five hours from consumption. The court held that there was
advertisements. “no danger of consumer deception and hence, no basis for
a false advertising claim.” The court further found that the

Some Examples of Non- challenged statement was “an obvious joke that employ[ed]
hyperbole and exaggeration for comedic effect,” and
actionable Puffery under the therefore constituted puffery.

Lanham Act However, in less obvious cases in which comparative

advertising is present, puffery defenses are harder to
Puffery is not actionable under the Lanham Act because it maintain. In XYZ Two Way Radio Service, Inc. v. Uber
consists of, generally, “exaggerated statements of bluster or Technologies, Inc., 214 F. Supp. 3d 179 (E.D.N.Y. 2016),
boast upon which no reasonable consumer would rely” and while the court ultimately accepted Uber’s puffery
“vague or highly subjective claims of product superiority, defense, Uber’s advertisements demonstrably came
including bald assertions of superiority.” See Am. Italian dangerously close to the line between puffery and
Pasta Co. v. New World Pasta Co., 371 F.3d 387, 390–91 unsubstantiated comparative advertising (and the associated
(8th Cir. 2004). Some instances of courts determining an legal consequences). In XYZ Two Way Radio, two livery
advertising claim was puffery, and thereby non-actionable companies that provided black-car services sued Uber
under Section 43(a) of the Lanham Act, include the for allegedly false statements advertising the “safety” of
following: Uber’s services. The court held that Uber’s safety-related
statements fell into the “boastful and self-congratulatory”
• New World Pasta Co.’s claim regarding their slogan, definition of puffery because many of the statements
“America’s Favorite Pasta,” was held to be puffery were replete with terms such as “committed to,” “aim
because the claim was too broad and therefore to,” or “we believe deeply.” The court also held that other
subjective to be false advertisement. See Am. Italian challenged statements could not reasonably be understood
Pasta, 371 F.3d at 391. by consumers as facts that could be scientifically verified—
• Abercrombie & Fitch’s claim regarding their pants for instance, “Uber is committed to connecting you to the
design: “Our most original pant since 1892 . . . Pure safest ride on the road. This means setting the strictest
Abercrombie & Fitch design and fit,” was held to be safety standards possible, then working hard to improve
puffery as there was no way to prove otherwise. See them every day.” The court reasoned that if Uber literally
Maharishi Hardy Blechman Ltd. v. Abercrombie & Fitch set the “strictest safety standards possible,” it could not
Co., 292 F. Supp. 2d 535, 552–53 (S.D.N.Y. 2003). “improve them every day.”

• Powerade’s claim that theirs was “The Most Complete The court also rejected the plaintiff’s attack on Uber’s
Sports Drink” was held to be puffery “because guarantee that its drivers “must go through a rigorous
consumers understand the advertiser is not contending
background check” that is “often more rigorous than false advertising. Although intent is relevant on the issue of
what is required to become a taxi driver.” Although Uber’s damages, intent to deceive or bad faith is not a necessary
background check did not require fingerprints, a medical element of a Lanham Act claim. See Procter & Gamble
clearance, or a drug test—all of which New York City Co. v. Cheesebrough-Pond’s, Inc., 747 F.2d 114, 119 (2d
requires for licensed cab drivers—the court explained that Cir. 1984) (“[P]roof of good faith does not immunize a
Uber’s background check statements are also “boastful defendant” from Lanham Act false advertising charge);
and self-congratulatory.” The statement also included Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186,
the qualifier “often,” so the court found that Uber was 189 (2d Cir. 1980) (holding that intent to deceive is not
actually stating that its background checks are often more an element of false representation); Parkway Baking Co. v.
rigorous than what is required to become a taxi driver. Freihofer Baking Co., 255 F.2d 641, 648 (3d Cir. 1958);
Uber’s website also included the disclaimer that “specifics Grupke v. Linda Lori Sportswear, Inc., 921 F. Supp. 987,
[on the background checks] vary depending on what local 994 (E.D.N.Y. 1996) (citing Johnson & Johnson for same);
governments allow.” Ultimately, the court concluded that Brandt Consolidated, Inc. v. Agrimar Corp., 801 F. Supp.
Uber’s statements were meant simply to convey that it 164, 174 (C.D. Ill. 1992) (holding that a Lanham Act claim
takes the safety of its passengers very seriously. based on false representations of patent infringement does
not require an allegation of bad faith); McNeilab, Inc. v.
Before your client releases advertisements and related American Home Products Corp., 501 F. Supp. 517, 529–30
marketing materials, always review them to ensure that (S.D.N.Y.1980) (holding that a false advertising claim under
all puffing statements actually do fall under the puffery the Lanham Act requires no intent to deceive). The Lanham
umbrella and that all other claims are accurate and properly Act has created a regime of strict liability in regards to false
substantiated. Make sure all assertions are objectively true, advertising claims.
and properly fact check (with supporting documentation
as proof) and verify them to the extent necessary before Surprisingly for many advertisers, this can be true even if
distribution. (Or double check your client’s fact checking the advertisement was once true and accurate, but later
and verification.) Be sure to inform your client that their becomes false due to new developments and innovations.
omission of material information can be just as damaging This was the case in SharkNinja v. Dyson, in which Dyson
as their inclusion of incorrect or misleading information. For was sued over its claim that its vacuums had “twice the
example, failing to include a clear and conspicuous warning suction of any other vacuum.” When Dyson originally made
that a hair product could cause a serious rash if the the claim, it was truthful. But when SharkNinja released a
consumer does not stay out of the sun for 24 hours after new vacuum with better performance—after Dyson had
applying the product is a material omission, if true. already launched its advertising campaign—the claim no
longer held true. Moreover, once Dyson learned of the new
If your business client believes its competitor is SharkNinja vacuum, they moved to remove that slogan from
disseminating false or misleading comparative advertising, their advertising.
then you should promptly challenge the relevant
advertisement by doing one or more of the following: Despite all of this, the court found for SharkNinja, ruling:
sending a cease and desist letter; issuing a takedown
request; or filing a legal complaint. For more information The language of the statute is compulsory, and
on challenging comparative advertising, see Challenging a it includes no exceptions for cases in which a
Comparative Advertisement Checklist. For more information manufacturer undertakes good faith, commercially
on challenging a false advertising claim, see Competitor reasonable efforts to remove a false claim from the
False Advertising Claim Challenges. marketplace upon learning of its falsity. Good faith is
simply not a defense to a false advertising claim under

The Stakes – When the the Lanham Act.

“Puff” Turns Out to Be Just Thus, the caselaw and the statute seem to appropriately
establish that an advertiser that puts a claim into the

False Advertising marketplace bears all of the risk of the claim being
false or becoming stale. An approach that allowed
When an advertiser decides to make a claim that may fall such an advertiser to continue to benefit from false or
on the wrong side of puffery, the stakes are high and the stale claims, so long as reasonably commercial efforts
advertiser’s intent is hardly a shield. This is because many were undertaken to remove the advertising, would not
statutes, including the Lanham Act, impose strict liability for adequately disincentive the behavior prohibited by the
 Lanham Act or foster vigilance about the accuracy of Ultimately, when NAD and FTC scrutinize advertising
advertising claims. Further, it would unfairly shift the campaigns, they will look to the degree of boastfulness in a
cost of stale or inaccurate claims from the sponsor of claim, and whether any of the claims made are quantifiable
such claims to its competitors, as long as the sponsor in some way, or potentially subject to objective analysis.
made reasonable efforts to remove those claims. This analysis is performed in the context of the rest of
the marketing campaign. Those claims that a reasonable
See SharkNinja Operating LLC v. Dyson Inc., 200 F. Supp. consumer would not take seriously are considered puffery,
3d 287–88 (D. Mass. 2016). while those that are verifiable (one way or another) are not
considered puffery.
Dyson did not claim that its slogan was puffery, but rather
that it was true at the time they made it, and that they had
made commercially reasonable efforts to stop the slogan Conclusion
once they learned it was no longer true. Nevertheless, the
case demonstrates exactly how strict the strict liability Puffery can be a powerful marketing tool that, if used
standard for false advertising under the Lanham Act really correctly, can capture the attention of consumers and
is. Accordingly, the legally prudent advertiser is well-advised garner sales. But puffery is not without its dangers.
to keep this in mind when making claims in their marketing Advertisers and marketers must ensure that their claims
campaigns. do not need substantiation. The more the claim resembles
a measurable fact or comparative advertisement, the

Puffery in the FTC and NAD more likely the claim will require substantiation and, if
not supported, the advertiser will be held strictly liable
for false advertising. For more information regarding claim
Outside of the courts, non-actionable puffery is a primary
substantiation and competitor challenges, see Advertising
consideration within both the domains of the FTC and the
and Marketing Claims — Claim Substantiation, Claim
NAD. For the latter, the following factors are considered
Substantiation Checklist, and Competitor False Advertising
in the determination of non-actionable puffery vs. false
Claim Challenges.
advertisement:

• Can the representations be proven or disproven? Related Content

• Are the representations distinguishable from
representations that can be verified scientifically? Practice Notes
• Is the language employed by the advertisement • Advertising and Marketing Claims
expressions of opinion that can be discounted by the • Online Advertising Regulation and Compliance
buyer?
• Federal Regulation of Advertising
These factors were in play when, for instance, NAD
• Advertising Regulation Fundamentals
certified Vital Pharmaceutical’s slogan, “The World’s Most
Effective Energy Drink.” Similarly, NAD determined that • Unfair Business Practices Claims
Wrigley’s use of, “For White Teeth, No Matter What,” was • Competitor False Advertising Claim Challenges
an obvious exaggeration that consumers would not take
seriously. Hunt’s Ketchup’s slogan, “Only the Best Tomatoes Checklists
Grow Up to be Hunt’s,” was also considered by NAD to • Challenging a Comparative Advertisement Checklist
be an obvious exaggeration made without any reference
• Distinguishing Advertising Claims from Puffery Checklist
to objective, quantifiable aspects of Hunt’s Ketchup. This
distinction between quantifiable claims and boastfulness • Claim Substantiation Checklist
came into play when NAD found Metabolife International’s
slogan, “#1 in Weight Loss,” to be misleading. In so
determining, NAD pointed to the fact that the #1 portion
of the claim indicated to consumers that its effectiveness
was scientifically tested and proven relative to the
performance of competitor products. For more information
about the NAD, see the NAD website.
Neema Amini, Partner, Amini & Conant, LLP
Neema Amini heads his firm’s transactional contract work, as well as business litigation. Operating out of the Austin and New York City
offices, he works with a variety of enterprises--both established and emerging, and in industries such as entertainment, information security
technology, and fashion. He has represented domestic and foreign clients, including companies and individuals, in various types of complex,
high-stakes litigation in both state and federal courts. He also directs the firm’s TechOps.

This document from Practical Guidance®, a comprehensive resource providing insight from leading practitioners, is reproduced with the
permission of LexisNexis®. Practical Guidance includes coverage of the topics critical to practicing attorneys. For more information or to sign
up for a free trial, visit lexisnexis.com/practical-guidance. Reproduction of this material, in any form, is specifically prohibited without written
consent from LexisNexis.

LexisNexis.com/Practical-Guidance
LexisNexis, Practical Guidance and the Knowledge Burst logo are registered trademarks of RELX Inc.
Other products or services may be trademarks or registered trademarks of their respective companies. © 2021 LexisNexis