Australia: How Certain Are You That It’s Puffery?

Last Updated: 8 April 2008
Article by Martin Algie

This article was first published in B & T magazine

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, but generalisation.

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 result.

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 false".

Its vital to know the ins and outs of puffery if you are involved in writing copy, signing off the work and running and ad campaign.

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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