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Business Advertising

Ron Stormoen

Issue Presented:

I often get questions from my business owner clients about the kinds of descriptions or adjectives that are permissible to describe their product in advertisements. Can they say this product is the “best in the world,” for example. Can they say their product is “faster” or “more powerful” or “more innovative” than their competitors? Can they assert their product is “superior” or “the most advanced in the universe?”

Short Answer:

Generally speaking, when the language is considered puffing (that is, “sales” talk, opinion, exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely) the statements are permissible and typically not actionable under state or federal law. On the other hand, when the statements are factual or objective, capable of measurement or testing, the statements may run afoul of state and federal law and be considered false or deceptive advertising.

Legal Analysis Supporting the Short Answer:

Do the proposed terms, above, give rise to a claim that the advertising is false or misleading? To answer that question, one should understand the meaning of the terms “puffing” and “objectively” or “factually” measureable when referring to product advertising. There is a difference between actionable scientific or factually measureable claims and non-actionable “puffing.”

Case law (that is, how courts have handled this issue and the factual context of each case) is helpful for an understanding in this area. As set forth below, case law supports the use of the terms referenced above.

In one case (Southland Sod Farms v. Stover Seed Co. (9th Cir. 1997) 108 F3d 1134, 1145), the Ninth Circuit held, for example, that a lawn seed manufacturer's advertisement that “less is more” was non-actionable “puffing,” but its claim that its seed required “50% less mowing” was actionable. The latter was a “specific and measurable advertisement claim of product superiority based on product testing.”

Simply, puffing is “sales” talk, exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable under state or federal law. In Nikkal Industries, Ltd. v. Salton, Inc. (SD NY 1990) 735 F.Supp. 1227 a claim that one's product is “better” than one's competition was found to be “puffing.”

In Autohaus, Inc. v. Aguilar (Tex.App. 1990) 794 SW2d 459, a claim that a Mercedes–Benz is the best-engineered car in the world and is unlikely to have mechanical difficulties was found to be “puffing.”

In Cook, Perkiss & Liehe, Inc. v. Northern California Collection Service, Inc. (9th Cir. 1990) 911 F2d 242, a Federal Lanham Act case, the Ninth Circuit held that a debt collection service's claim that its services were comparable to but cheaper than hiring an attorney was just a general assertion of superiority, not actionable and it affirmed the district court's dismissal of the claim.

Additionally, in Oestreicher v. Alienware Corp.(ND CA 2008) 544 F.Supp.2d 964, 973, aff'd, 322 Fed.Appx. 489 (9th Cir. 2009), the district court held that adjectives used in advertising to describe defendant's personal computers, such as “faster,” “more powerful,” and “more innovative” than competing machines, are “non-actionable puffery.” Of course, if “faster” or “more powerful” could have been measured, the court might have found the statements actionable.

In Atari Corp. v. The 3DO Company (ND CA 1994) 31 USPQ2d 1636, 1994 WL 723601, the court was asked to find that defendant 3DO's slogan—“The Most Advanced Home Gaming System in the Universe” was false and misleading both under § 43(a) of the Lanham Act and under California’s Unfair Competition laws (§§ 17200 and 17500). Plaintiff Atari argued that the slogan was false because its own system had greater bus bandwidth and, thus, makes its system “more advanced” than the 3DO system. The court found the slogan to be merely a general assertion of superiority, not a representation about objective, quantifiable attributes, and hence not actionable under either the Lanham Act or under §§ 17200 or 17500.

Finally, in Consumer Advocates v. Echostar Satellite Corp. (2003) 113 CA4th 1351, 1361, 8 CR3d 22, 29–30, the plaintiff brought an unfair competition action alleging false advertising regarding the clarity of defendant's digital TV signal. The claim was that defendant used such phrases as “crystal clear digital video” and “CD-quality audio.” The appellate court held that most of the allegations amounted to “puffing” and were not actionable because the claims were not factual. They could not be objectively measured.

While product superiority claims that are vague or highly subjective often amount to non-actionable puffery, realize and appreciate that mis-descriptions of specific or absolute characteristics of a product are actionable. A specific and measurable advertisement claim of product superiority based on product testing is not puffery. For example, W.L. Gore & Assocs., Inc. v. Totes Inc., 788 F.Supp. 800, 809 (D.Del.1992) the court found numerical comparison that product is seven times more breathable “gives the impression that the claim is based upon independent testing” and “is not a claim of general superiority or mere puffing.” Also, as set forth above in Southland Sod Farms seed that required “50% less mowing” was found to be actionable because the claim could be objectively measured (and was allegedly based on some lab testing).

Based on the foregoing, the inquiry for business owners contemplating product representations in advertising is whether the statements on the proposed advertising are merely general assertions of superiority or factual claims that can be objectively measured. The former would not be actionable, the latter may.

The statements set forth in the Issue Presented, above, seem to be mere sales talk, a subjective opinion (i.e., puffing) which cannot be objectively measured and, therefore, are probably non-actionable. As mentioned in one case above, even claiming that the product “the most advanced in the universe” was not actionable!

Of course, the language in your particular advertisement should be reviewed by an attorney. If you have any questions, we invite you to contact us for a free consultation.

DISCLAIMER: This entry does not give specific legal advice about your specific legal problem. No text or graphic contained in this entry is to be or should be used or relied upon as legal advice. This entry does not create an attorney-client relationship. If you want specific legal advice about your particular legal issues, or if you want to create an attorney-client relationship, you need to retain the Law Offices of Ron A. Stormoen by a signed written retainer agreement.