Puffery

Legal and Ethical Implications

The United States Federal Trade Commission (FTC) permits the use of puffery in promoting products, services, and ideas. Promotional materials, such as press kits, videos, brochures, and other collateral, are viewed as vehicles of commercial trade and subject to regulation by the FTC. Although there may appear to be a fine line between puffery and deceptive advertising, there are legal distinctions. U.S. courts have repeatedly upheld the legality of puffery. The courts' rationale is that it should be expected that “any seller will express a favorable opinion concerning what he has to sell; and when he praises it in general terms…buyers are expected to and do understand that they are not entitled to rely literally upon the words” (Restatement of the Law of Torts 48, 1965, para. 542). Guidelines created by the FTC to define deceptive advertising exclude puffery, noting, “The commission generally will not bring advertising cases based on subjective claims, such as taste, feel, appearance or smell” (FTC Policy Statement on Deceptive Acts and Practices,1983).

Puffery becomes deceptive only when it falsely claims the substantive superiority of a product or service, and when it can be demonstrated that the false claim is likely to affect consumer choices. The law pertaining to false advertising under Section 43(a) of the Lanham Act requires that plaintiffs demonstrate that the ad or promotion is either literally false or that it is likely to mislead and confuse consumers. To prove that it is misleading, the plaintiff must introduce empirical evidence of the statement's impact on consumers. The bottom line: As long as claims are so vague or subjective that they cannot be directly tested or substantiated, they are considered puffery and are legal. Puffery cannot be false representation, because it does not include statements of fact.

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