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Sorry, couldn’t resist. Two athletic supply companies just faced off at NAD over advertising claims for hockey tape. The advertiser, Howie’s Hockey, uses the tout “World’s Highest Quality” in various media, including its website, POS, on-pack, etc. Not surprisingly, the tilt was whether the phrase is non-actionable puffery, as the advertiser argued, or an unqualified and unsubstantiated superiority claim, as the challenger, Mueller Sports Medicine, argued. Neither party presented consumer perception evidence.
As it always does, NAD skated directly to the key issue: examining the context for the tout to determine what it would reasonably convey to consumers. And, as it determined in another recent case involving a superlative claim, NAD found that standing alone, the tout is puffery. It noted that “where the claim…appears alone on product packaging and on in-store displays….it functions as a slogan conveying…corporate pride and is puffery. In these contexts, the claim is not presented in close proximity to any competitor or specific product attribute. Accordingly, consumers are unlikely to reasonably interpret the “World’s Highest Quality” claim as conveying an objective message that Howies' products are superior to competing products.”
However, when combined with other product attributes about its tensile strength, durability and tear ability, the claim conveyed not just corporate pride, but an “objective representation regarding the performance or other tangible attributes of a product that is sufficiently specific and material enough that substantiation is required.” In this context, then, the tout is not puffery, but an objective and substantiable claim. And, because the advertiser did not present evidence as to the superiority of its product quality, NAD recommended that the advertiser discontinue or modify the advertising to avoid conveying the unsupported message that Howies products are superior. NAD also recommended that Howies make bona fide, good-faith efforts to have the claim discontinued on third-party retail websites where it appears in close proximity to measurable product attributes.
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