Marketing & Communications

A note on puffery

Not much time for blogging these days as I struggle to edit my LLM thesis (I’ve discovered through the process of pursuing the Master’s in Law that a 25-year career in journalism and marketing gives one a rich sense of strategy, narrative and storytelling purpose, but is in some ways antithetical to writing for legal academia).

I do still hang out on MetaFilter quite a bit, though, and since somebody brought up the famous Pepsi Harrier case on there the other day, wrote up a quick bit on puffery, partly in response to an earlier “all advertisers are liars amirite?” comment.

It’s not comprehensive, but it has potato chips in it:

Hey, puffery!

I got into my LLM (Master’s in Law) program wanting to use puffery as my general topic for exploration, but my thesis supervisor felt it was “settled” law in the sense that it just kind of… works, generally, and there isn’t an urgent problem to be addressed.

As advil says above, it’s not “advertisers get to lie because people know advertisers lie”, the general principle is oriented more around the idea of reasonable personhood*, and the idea that you can state something so outrageous that a reasonable person would not believe it.

This is why there are no court cases where people are suing Skittles because they bought and opened a bag of Skittles and a unicorn did not run into the room and touch their couch with its horn and turn it into Skittles like in the ad. It’s why a pizza joint on the radio can say they have the best slice in town without having to present 40 pages of quantitative data first defining “best” in the context of pizza and then what exactly makes their pizza “the best.”

But there’s a thin edge to puffery; recent examples include an attempted class action suit because Hawaiian potato chips are not made in Hawaii, or an attempted class action suit that TGI Fridays potato skin chips are not made from potato skins but seasoned like the restaurant’s potato skin dish.

(I swear puffery is not all potato chip law, I just found the Hawaiian thing while struggling to recall the TGIF thing).

Like howfar says, its roots are in contract law (like the Pepsi example above, or pretty much any time an end consumer brings suit) but legal issues over puffery often cross over into competition law or advertising regulatory bodies where companies will go after each other because they feel another company’s puffery is edging over into falsehood instead of easily recognizable exaggeration.

I regret not being allowed to pursue it as an LLM topic, but (as I have learned, slowly and with great pain) good legal writing tends to be more about an imminent problem in law that requires an urgent solution and some ideas on how to address it, and not just pointing at weird stuff and going “hey, that sure is weird.” Puffery is weird! But it’s not a problem that the courts traditionally have a problem dealing with; it comes down to some judgment calls among the judiciary and sometimes judges get things wrong, but on the whole it’s a pretty understood area that’s relatively easy to navigate.

*but “reasonable personhood” is an amazing topic for exploration, because immense amounts of law rely on this vague cultural idea of “the man on the Clapham bus”, and it’s only in the last couple of decades that people have started to really look at that and go “wow, that’s a super colonial, neurotypical, able-bodied framing that kind of sucks.” If you want a great read on the subject, Rethinking the Reasonable Person is a dynamite monograph by Mayo Moran that meticulously unpacks so much that is horribly wrong with how reasonable personhood is constructed.