Puffery

While overly representing the characteristic value of an item to be greater than in actuality has its roots deep in human history, the word puffery is a relatively new legal term of art. Puffery is most commonly the use of exaggerations reasonably expected from a seller regarding the degree of quality of a product, the truth of which cannot be precisely determined. The exaggerated commendation for promotional purposes must not be material to the true character of the product for fear of leading to fraud or intentional misrepresentation. Puffery, although a specifically protected form of speech under the First Amendment to the U.S. Constitution, remains highly regulated to prevent commercial abuse of unsuspecting consumers. Product puffery is not the sole form promotional praise may take, but rather puffery of individual prowess is commonplace among professional service providers and is often the form most readily abused.

Puffery, although likely used for as long as commercial enterprise has existed, first appeared in legal form in 1893 in the English case of Louisa Carlill versus the Carbolic Smoke Ball Company. Following the 1890 influenza pandemic, the Carbolic Smoke Ball Company advertised a product guaranteed by monetary payment to prevent contraction of the virus by a regular user. Louisa Carlill used the product as directed; however, she contracted influenza despite the commercial claims and subsequently filed suit for payment under the advertised guarantee.

The respondent company argued in its defense that its claims that no product user ever contracted [Page 789]the then deadly influenza virus were merely offered to “puff up” the value of the product; no reasonable person could take such claims literally and therefore they could not form the basis of a contractual obligation to which remuneration could be attached. However, the court held that a full binding contract had been initiated under the auspicious claims of product quality. More important, the ruling established the basis for utilization of puffery in commercial enterprise by setting forth the foundation of what level of exaggeration may be legally enforceable.

In the United States, the Lanham Act was passed by Congress in 1946 to further codify the limitation of puffery regarding the misrepresentation of the quality or characteristics of a product. Puffery in advertising a product must be done with caution so as not to qualify a product upon which a consumer may rely for an expectation of outcome. Where the line between puffery and misrepresentation falls is constantly being challenged; however, it is relatively settled that when a product claims to be superior to competitive brands in specific characteristics, consumers may reasonably rely on such claims as a representation forming the basis of inducement to purchase this product.

The implication of such exaggeration is twofold. First, competitive producers may levy claims of impermissible advertising, unless such claims are empirically proven. Incidents of such proof may be found in pizza maker Papa John's famous advertising campaign against rival Pizza Hut that “fresh dough beats frozen dough” is permissible only when such claims can be proven through independent taste tests. Second, the implication of crossing the line from puffery into misrepresentation also gives rise to individual consumer claims for failure of a product to meet stated expectations. Although not likely to be as costly to the offending organization as competitor claims, individual claims often arise in abundance, costing the advertiser loss of resources in defending against such claims in avoidance of established precedence.

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