Understanding the Line Between Puffery and False Advertising
Ever see or perhaps use yourself, slogans or phrases like these, to advertise your business or service?
“We’re the best company in the world!”
“Our pizza will make you desperate for more!”
“We can build you the home of your dreams!”
“Our doctors are the best in town!”
When you published or used these kinds of phrases in your advertising, you probably knew you weren’t making any actual, legitimate guarantees to create any kind of binding contract. And you may have assumed that those reading these things also know you aren’t serious.
But the line between making a guarantee or promise that is legally enforceable, and what is known as puffery can make a big difference to your business.
What is Puffery?
Puffery is where a statement is made that is merely exaggeration, or “colorful language,” but not a real, genuine statement of fact or a guarantee. Puffery is a defense to claims of fraud, false advertising, and misleading statements made by businesses.
Proving Puffery
The question is whether or not a reasonable person would take the statement seriously, and as a guarantee of the quality or content of the product or service being sold.
Reliance also matters. If someone advertises that they have “the best pizza in the world,” courts will ask whether a consumer would actually expect, much less rely upon whether or not the pizza was the best in the world, or whether a consumer would know that such statements are just colorful exaggerations.
The Lawyer’s Million Dollar Promise
Often it can be difficult to tell what is and what is not puffery.
Take for example, the case of the lawyer trying to defend his criminal law client. In public statements, the lawyer said that he would pay a million dollars to anybody who could demonstrate that his client committed the crime, in the correct time frame, contending that doing so was physically impossible.
Sure enough someone (a law student) rented a car, and travelled the route that the client would have had to travel, and sure enough, he did it within the correct amount of time, thus entitling him, he alleged, to the million dollars that the attorney had “offered.”
The student’s lawsuit failed, with the court saying that the lawyer’s televised claim or offer was never intended to be a real offer, and no reasonable person would have believed it to be so.
Can it be Verified?
Even a single word can make a difference. Saying something is “nutritious,” may be misleading if the product has little or no nutritional value. But saying something is “unbelievably nutritious,” may convert that claim into mere puffery.
That’s often because courts will also look at what can be verified, objectively. You can, for example, verify whether something has nutritional value. But can you verify what being “unbelievably nutritious” is? Likely not, making it puffery.
Can it Be Proven False?
One good rule of thumb is whether or not a statement could be proven to be false. If it can, then the assertion may be seen as a valid guarantee, claim, promise, or offer. If it cannot—again, think “best pizza in the world, ”a statement that has no way to be proven false or true—then the wording may be seen as puffery.
Don’t be a victim of false advertising or get in trouble for doing it. Contact the West Palm Beach commercial litigation lawyers Pike & Lustig for help with answering your business law questions.
