Duhaime's Law Dictionary


Puffery Definition:

Advertising which states in general terms that one product or service is superior and which does not otherwise imply any specific representation in regards to the product or service.

Most jurisdictions have consumer protection statutes which prohibit the misrepresentation of a product. In consumer law, if a consumer asks or is given a representation in regards to an item, the information extended must be accurate and not deceptive.

The law has struggled to cut advertisers some slack and have created a distinction between misrepresentations and what the judges have called puffery or often described as mere puffery.

In Castroil v Pennzoil, the United States Court of Appeals adopted these words:

"Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language. Such sales talk, or puffing, as it is commonly called, is considered to be offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer.The puffing rule amounts to a seller's privilege to lie his head off, so long as he says nothing specific.

"Puffery is distinguishable from misdescriptions or false representations of specific characteristics of a product. As such, it is not actionable....

"[P]erformance claim which can be comparatively rated is not puffery. Claims concerning specific product attributes are not puffery. Claims subject to measurement are not puffery."

In Cook Perkiss v Northern Collection, the same court (9th Circuit) held:

"[W]e have recognized puffery in advertising to be claims which are either vague or highly subjective. The common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions. Advertising which merely states in general terms that one product is superior is not actionable. However, misdescriptions of specific or absolute characteristics of a product are actionable."

The court went on to give the example on an lighting ad which stated that the lamps were "far brighter than any lamp ever before offered for home movies": that was puffery. But it was not puffery when the representations turned specific as to performance as in: "35,000 candle power and 10-hour life".

REFERENCES:

  • Castrol Inc. v. Pennzoil Co., 987 F. 2d 939
  • Cook, Perkiss & Liehe v. Northern California Collection Service, 911 F.2d 242 (1990)

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