This article was first published in B & T
Do you know everything you should know about puffery when it
comes to writing ad copy? Even if you think you do, its
probably worth pondering on the following.
There are three broad categories of puffery: general
statements, particularly where the claim is subjective
(generalist puffery); claims of an introductory nature designed
to attract attention, rather than close a deal (introductory
puffery); and preliminary statements made during business
negotiations (negotiation puffery).
Readers are likely to be most interested in the first of
these. The second often appears in promotional brochures,
sometimes in newspaper ads, but is rarely, if ever, written by
agencies. Besides, introductory puffery applies in only
restricted circumstances. All the cases involving introductory
puffery concern the sale of property or businesses. To be
legal, it must do no more than invite interest and further
exploration and the target audience must be experienced.
As for generalist puffery - the point is not exaggeration,
A few years ago, Optus attempted to take advantage of the
introduction of number portability with a campaign that had the
tag line "No Risk Switch". This was run in
the electronic and print media. Telstra challenged the claim,
alleging that there was a risk, a risk of customers suffering a
penalty when they shifted from their existing carrier. Optus
argued that the claim was mere puffery, submitting that the
words "No Risk" were virtually meaningless,
indicating nothing more than Optus was offering something it
claimed was beneficial. As there was a benefit to switching
(albeit, not necessarily a costless one), Optus asserted that
the claim was legal. The Federal Court disagreed. It found that
the claim would be seen by anyone reading the advertisement as
"a definite statement as to a characteristic or
consequence of switching &".
Even though Optus failed, the case highlights the principle
a statement is puffery if it cannot be given either a definite
or assessable meaning. Such statements are outside the scope of
the TPA. In 2006, Unilever advertised Summer Glow as
"the best tanning body lotion available" in a TVC and
on the internet. The Federal Court held that the claim was
puffery. This is not simply an exaggeration, the claim lacked
meaning. What would make a tanning lotion "best"? In
an earlier case, the claim that "Pizza Haven is a success
story" was similarly found to be puffery. The words
"success story" are so broad in compass, they could
mean almost anything. Because the claims lacked a definite
meaning, the Court in each case held that they were not
understood by the target audience as representations of fact.
They were puffery.
Advertisers often fall into the trap of using extreme
exaggeration. The hope is that such a claim is puffery, that
the exaggeration renders the statement ridiculous, literally.
However, there are dangers in this approach. How far do you
need to go? The Henry Kaye experience illustrates those
dangers. He was a property developer who made a fortune running
training courses for budding property magnates. He claimed he
would select 5 "ordinary Australians" and teach them
to become property millionaires. The Court rejected Mr Kayes
defence that this was nothing but puffery. Despite sounding
ridiculous, it was a serious statement made in response to
public criticism of his courses. The Court found that the claim
would have been understood as a representation of fact as a
The other form of generalist puffery is the subjective
statement. If a statement is capable of meaning different
things to different people, really, it means nothing, at least
nothing that can be pinned down and enforced. Examples include
"the shopping centre is a good investment" and
"Pizza Haven will organise an aggressive marketing
campaign". What is a good investment to a conservative
investor may very well not be to a person looking for a quick
return. What a timid, risk averse person sees as
"aggressive" may be weak to another. Similarly,
statements about performance attributes (something that is
objective) are less likely to be puffery than other less
objective attributes, such as fragrance.
There is clearly a limit to this. It is not as if these
claims cannot be said to meaning absolutely nothing. A
cautionary note should be sounded for the use of puffery in
comparative advertising. In 2002, the Full Federal Court
clearly stated that "comparative, as distinct from
unilateral, promotion of a product necessarily indicates that
the advertisement is not mere advertising puff, but involves
representations of fact which are either true or
Its vital to know the ins and outs of puffery if you are
involved in writing copy, signing off the work and running and
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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