Royal Oak sells Super Size charcoal briquets that are 50% bigger than the briquets sold by certain competitors. Royal Oak advertises that "a bigger briquet is a better briquet" and that the briquets provide "the best grilling experience." Kingsford Products Company challenged these (and other) claims and demanded that Royal Oak provide substantiation.
Royal Oak contended that "bigger is better" is "a common idiom understood by consumers to mean simply that a bigger size is valuable in its own right and not a prerequisite to other desirable attributes or functions." As such, consumers would not expect objective support for its "bigger is better" claims. In other words, they argued that the claims are puffery.
NAD noted that whether or not a "better" claim constitutes puffery depends, in part, on whether an advertiser ties the claim to specific measurable attributes (in which case the advertiser will likely need substantiation) or whether the claim comes across as a vague statement of subjective opinion (in which case the advertise will likely not need substantiation).
In some ads, Royal Oak specifically tied the "bigger is better" claim to "burn time and speed of combustion." Because of this, NAD determined that the claim "reasonably conveys the message that a bigger briquet size corresponds to superior performance with respect to longer burn time and faster lighting." Accordingly, Royal Oak was required to have substantiation for those messages.
NAD reached a similar conclusion on the "best grilling experience" claim. Although Royal Oak argued the claim was subjective, NAD noted that it often appeared in copy stating that the "briquets are 50% bigger and light fast with high heat and a long burn time for the best grilling experience." NAD determined that consumers were likely to interpret this to mean that the briquets "burn hotter and burn longer" than competing briquets.
This decision isn't surprising and it's generally consistent with NAD precedent on these types of claims, but it serves as an important reminder on how much context can matter in a puffery analysis. If you want to argue that a claim is subjective and can't be measured – puffery – you should generally be careful to avoid tying it to closely to claims that are objective and can be measured.
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.
