NAD Clarifies Standard for "Puffery"

The National Advertising Division, a specialized dispute resolution forum administered by the Council of Better Business Bureaus, recently clarified the standard for determining whether statements are mere "puffery," rather than unsupported superiority messages.

The Campbell Soup Company, maker of V8 V-Fusion fruit/vegetable juice, challenged a Tropicana television commercial in which Tropicana advertised its own fruit/vegetable juice. The commercial depicted a wide selection of non-refrigerated juices crashing down to the floor, accompanied with a statement that: "If you want the world's best fruit and vegetable juice, look in the cooler. Introducing Tropicana Farmstand, a deliciously chilled fruit and vegetable juice."

While a claim that a product is the "world's best" would ordinarily constitute a classic example of puffery, Campbell noted that puffery is not a defense where a claim is made in a clearly comparative context. As NAD explained, a statement is only puffery if "the use of the superlative is vague and fanciful and suggests no objective measure of superiority." In contrast, a commercial that used a word like "best" or "greatest," but simultaneously depicts a competitive product being thrown away or otherwise denigrated, constitutes a superiority claim that requires substantiation. Thus, the question was whether, in context, Tropicana's commercial gave rise to an objective superiority claim.

NAD found that it did not. Since Campbell failed to submit any reliable survey results showing that consumers took away a superiority message from the commercial, NAD placed itself in the shoes of consumers. It noted that the depiction of competitor products crashing to the floor was "fanciful" and that, "other than the fact that Tropicana Farmstand is refrigerated, the commercial makes no reference to any other product attribute." Furthermore, to the extent that consumers took away a message that a refrigerated product is of "higher quality" or is "more fresh" than non-refrigerated products, "this association is likely based on preconceptions."

TAKE AWAY: When using puffery in advertising, it is important to consider the full context of the statement. Comparative claims are not puffery, and must be capable of substantiation. Vague or fanciful statements, however, can stand on their own.

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