Bob’s note: It’s rough out there for consumers. Large corporations spend billions of dollars learning how to “hack” marketplaces, and people, getting them to overpay for things or tricking them into buying items that aren’t what they seem. Screaming “that’s not fair!” rarely gets you anywhere, however. That’s why today I’m starting a new series with attorney Jeff Carton, who has spent decades defending consumers’ rights in court as one of New York’s most respected class action lawyers. He’s offered to give my readers a crash course on consumer law.
Getting justice, and fairness, doesn’t involve getting mad, or getting even: It involves knowing the law. Few things scare misbehaving corporations more than consumers who know their rights. With this series, we will try to give you some basic tools so you can stick up for yourself.
First up: The phrase “false advertising” is thrown around a lot, but when is it false vs when is it just advertising? Often, that comes down to a legal term known as “puffery.” I’ll let Jeff take it from here.
Bob: What is sales “puffery” and what is the difference between puffery and deception?
Jeff: “Puffery” is generally understood to be a form of boasting or hyperbole in which a manufacturer or merchant makes a claim of superiority over her competition that is so vague that consumers understand it is merely an expression of opinion. Exaggeration, bluster, and boastful statements upon which no reasonable buyer would be justified in relying are considered puffery, and are not actionable. On the other hand, factual misrepresentations which connote objective considerations, or discernible distinctions between competing goods or services, are not considered puffery and may constitute actionable deception.
As a general principle, those statements that are so generic or exaggerated and are unlikely to deceive the public are ones that may be freely used as non-actionable puffery. For instance, advertisements representing “blazing fast speed” and “lightning-fast internet access or “better ingredients, better pizza” have been considered puffery and not actionable. To the contrary, statements that can be verified, or which require substantiation or assert superiority as to specific attributes of a product will usually not be considered mere puffery.
A recent example where the Court rejected a puffery defense and allowed the consumer’s false advertising claim to proceed involved Revlon’s cosmetic skin cream which was advertised with the phrase “Age Defying with DNA Advantage.” Although Revlon argued that its marketing statement was merely vague, unsubstantiated puffery, the court disagreed, and concluded that it could not determine, as a matter of law, that the phrase “Age Defying with DNA Advantage” did not suggest to consumers a specific, objective statement of fact. As a result, Revlon’s motion to dismiss the case was denied.
(After the dismissal was refused, Revlon settled. Read more about the case here.)
Advertising campaigns that utilize superlatives such as “best,” “greatest,” “finest,” or “the world’s favorite,” without facts or evidence to support such hyperbole are considered non-actionable puffery. The critical distinction to be drawn between puffery and actionable deception is whether the ordinary, reasonable consumer would understand the advertising claim to be a subjective, oversized statement of opinion, or an objective assertion of fact that can be credibly verified.
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