The U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s ruling that the phrase "America’s Favorite Pasta" was not actionable false or misleading advertising under the Lanham Act, but rather constituted non-actionable puffery as a matter of law. American Italian Pasta Company v. New World Pasta Company, Case No. 03-2065 (8th Cir. June 7, 2004),
American Italian sells dried pasta products with the phrase "America’s Favorite Pasta" on its packaging. New World sent American Italian a cease and desist letter demanding that American Italian stop using that phrase. American Italian brought a declaratory judgment action, and New World counterclaimed for, among other things, violations of the Lanham Act. The district court dismissed New World’s counterclaim and declined to exercise jurisdiction over its state law claims. New World appealed.
The Eighth Circuit affirmed, noting that a statement of fact is a specific, measurable claim or one that can be reasonably interpreted as being a factual claim (i.e., one capable of verification). A statement constitutes puffery, on the other hand, if it is not specific and measurable and cannot reasonably be interpreted as providing a benchmark by which the veracity of the statement can be ascertained. Applying this distinction, the court concluded that the phrase "America’s Favorite Pasta," standing alone, is not a statement of fact because the term "favorite" connotes the subjective and vague notions of being well liked and admired; it does not provide an empirical benchmark by which the claim can be measured.
The court next considered whether the context in which the phrase "America’s Favorite Pasta" is used transforms it into a statement of fact. The court found that it does not because the phrase as it is used on the packaging is "unquantifiable and subject to an individual’s fancy." In other words, the phrase does not convey a benchmark for "America’s Favorite Pasta"; rather, the court found it is "vague, entirely subjective, and a bare assertion of product superiority."
Finally, the Eighth Circuit considered a consumer survey submitted by New World, which, according to New World, showed that the phrase "America’s Favorite Pasta" conveyed that American Italian’s pasta brand was nationwide (it is not) and was the number one selling pasta (it is not). The Eighth Circuit, citing Mead Johnson & Co. v. Abbott Laboratories, as persuasive authority, found that allowing a consumer survey to determine a claim’s benchmark would create uncertainty and unpredictability in the market place, and could chill commercial speech, because an advertiser attempting to put forth a puffing statement could be "blind-sided" by a consumer survey that defined the advertising statement differently, thereby subjecting it to unforeseen liability.
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