“Puffery,” or “seller’s puff,” is an exaggerated or over the top general promotional statement that a reasonable person would not take literally. For example, the claim that “Lilly’s Magic Lotion is the best lotion on the market” would be considered puffery. The claim that the lotion “is the best” is general and a court would find that a consumer could not reasonably take such a claim literally.
Unlike puffery, illegal misrepresentation relies on a specific claim that contradicts the facts in an important way. A claim that “Lilly’s Magic Lotion prevents wrinkles” could constitute misrepresentation. The claim that the lotion “prevents wrinkles” is specific and a reasonable consumer could take the claim literally. If the lotion did not actually prevent wrinkles, Lilly could be liable for illegally misrepresenting her product. (For additional reasons why this claim is problematic see the post “Cosmetic? Drug? How Puffery May Cause Your Product to be a Drug“)
An interesting area of the law involves the intersection of visual communication and puffery and misrepresentation. Although most cases apply puffery to verbal or textual claims, in cosmetic marketing, visual representations are deemed incredibly important. Indeed, some in the cosmetics industry have been criticized for “photoshopping” images. Internationally, several jurisdictions have adopted restrictions on the use of such techniques in certain circumstances.
Although the United States has not yet fully followed suit, the Truth in Advertising Act of 2014 (H.R. 4341) may be an indication that it is not too far off. In addition, it is imaginable a creative litigant using existing law and precedent to could argue that an extreme photoshopped image equates to false advertising.
Whether purported false advertising is from a visual image or statement, there are three general principles that underline deceptive advertising disputes. First, there must be a representation, omission, or practice that is likely to mislead consumers. Second, the representation must be material, i.e., will the claim likely affect a consumer’s purchasing decision. And, finally, would the reasonable consumer be deceived.
The puffery defense attacks these tenets based on three assumptions. First, there is an assumption that the ability to distinguish between factual and non-factual speech can be accomplished simply by looking at the speech itself. Second, “consumers acting reasonably” are unlikely to be deceived by claims that are incapable of being measured. And third, there is an assumption that the claim is not meant to deceive or lead to general practice of deceiving consumers.
Many real-world examples are less clear than our Lilly’s Magic Lotion examples above. A California District Court found that Quaker Oats’ claims that their product was “wholesome” was not puffery if the product contained “dangerous additives,” as the plaintiff claimed. Chacanaca v. Quaker Oats Co., 752 F. Supp. 2d 1111 (N.D. Cal. 2010). The Ninth Circuit found that a claim by Gerber that its fruit snack was designed “to help toddlers grow up strong and healthy” could constitute illegal misrepresentation, as the primary ingredients of the snacks were corn syrup and sugar. Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008). However, a District Court held that the term “premium” on Hansen’s Soda was classic puffery. Viggiano v. Hansen Natural Corp., 944 F. Supp. 2d 877 (C.D. Cal. 2013).
Relating to cosmetics, a New York District Court found that a label on “Fox’s Love Potion Perfumes” to be puffery when it stated the product contained “magical love attractant[s].” Dessert Beauty, Inc. v. Fox, 617 F. Supp. 2d 185, 193 (S.D.N.Y. 2007) aff’d, 329 F. App’x 333 (2d Cir. 2009). Furthermore, an Arizona District Court found to be puffery claims that a competitor’s eye-brow lengthening product was inferior and did not contain a necessary active ingredient. Cosmetic Alchemy, LLC v. R & G, LLC, CV-10-1222-PHX-GMS, 2010 WL 4777553 (D. Ariz. Nov. 17, 2010).
Take Away … Distinguishing between “seller’s puff” and illegal misrepresentation is not always a breeze. Even the best crafted defense may go up in smoke if a company pushes the envelope too far.