United States: Small Changes To An Ad Can Make Big Differences In A Puffery Analysis

When advertisers are accused of making unsubstantiated claims, a common defense is that the claim is just "puffery" for which no substantiation is required. Puffery exists as either 1) exaggerated statements of bluster or boast upon which no reasonable consumer would rely, or 2) vague or highly subjective claims of product superiority, including bald statements of superiority.

In recent months, the National Advertising Division ("NAD") has weighed the defense of puffery in three cases, and a federal district court addressed it in a case last month. In all four cases, the advertiser prevailed. A review of those decisions, involving different forms of puffery and different products, illustrates how the NAD and courts try to approach the subject.

The Sherwin-Williams Company (Krylon CoverMaxx Spray Paints) (NAD April 12, 2017)

Sherwin-Williams made claims on its Krylon CoverMaxx spray paint product labels and in website advertising, that the paints provided "ultimate coverage." The product label included the phrase "Ultimate Coverage" below the product name and above a list of product attributes, including "Fastest Dry Time." Website advertising stated that "CoverMaxx Performance Paint provides rust protection, ultimate coverage and durable adhesion" above bullet points listing other product attributes. Competing manufacturer Rust-Oleum argued that "ultimate coverage" communicated a comparative message that CoverMaxx was superior to competing paint sprays on coverage.

The NAD determined that in context, the "ultimate coverage" claim was puffery. The NAD found that the claim itself was vague and fanciful and did not make any objective representation about the product's comparative coverage. Further, none of the product attributes listed on the product label or website, such as "Fastest Dry Time," conveyed a meaningful or measurable message about coverage. Therefore, a reasonable consumer likely would understand the "ultimate coverage" claim to be hyperbole.

The NAD also determined that the "CoverMaxx" product name is puffery since it is vague and does not convey a clear, specific and measurable message about product performance. The NAD noted that the shortened and imaginative use of the term "Maxx" supported this.

Blue Diamond Growers (Almond Breeze Almondmilk) (NAD May 9, 2017)

This case involved a commercial broadcast on television and online for Blue Diamond Growers' Almond Breeze brand almond milk. White Wave Foods, the manufacturer of Silk brand, challenged certain claims, including "The best almonds make the best milk." The commercial depicted a series of idyllic images of a family playing in an orchard. The "best almonds make the best milk" statement came at the very end of the commercial, displayed on-screen and heard in a voiceover, while an image of a can of almonds spins into an image of Almond Breeze cartons. The commercial did not mention any other brands. The NAD determined that, in the context of the commercial, "The best almonds make the best milk" tagline was a statement reflecting Blue Diamond's corporate pride in its product and that it was not a comparison for which consumers would expect substantiation. The superlative "best" was not accompanied by any specific attributes that suggested that Almond Breeze is better than other brands in a measurable way. Therefore, consumers were not likely to take away a superior quality or taste preference message.

PLZ Aeroscience Corporation (Sprayway Glass Cleaner) (NAD June 26, 2017)

S.C. Johnson, maker of Windex, challenged a claim on the label of PLZ Aeroscience Corporation's Sprayway brand glass cleaner that it is the "World's Best Glass Cleaner."

S.C. Johnson argued that because Sprayway is identified as a glass cleaner and because "World's Best" appears in close proximity to the claim that the product is "streakless," "World's Best" is tied to a product function (cleaning) that is testable and measurable.

However, the NAD determined that "WORLD'S BEST" was puffery because the words were in much smaller font and above the words "Glass Cleaner," were physically separated from the word "streakless," and were alongside an image of an iconic 1950's housewife holding a spray can in one hand and a cleaning cloth in the other. The words were, the NAD found, "an exaggerated display of the advertiser's pride in its product."

Kommer v. Ford Motor Company (Northern District of New York July 28, 2017)

A consumer brought a putative class action in the Northern District of New York alleging that Ford's TV and Internet advertising for its trucks featuring the slogan "Built Ford-Tough" violated New York's deceptive trade practice and false advertising statutes. The consumer complained that he and other consumers experienced door handles that often did not work in freezing temperatures while the advertisements highlighted the trucks' toughness and durability.

The court determined that "Built Ford-Tough" was an "exaggerated and generalized claim" that was puffery as a matter of law. The court noted that the advertisements made no reference to the quality of the trucks' door handles.

THE TROUTMAN TAKEAWAY: While the puffery defense has had a run of successes this year, these decisions are a reminder that small changes to the layout and the sequencing of statements in an ad can affect the outcome of a puffery analysis and that advertisements require careful review on a case-by-case basis, even when puffery is intended.

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