ADVERTISING SLOGANS: Fact vs. Puffing
IVAN HOFFMAN, B.A., J.D.
We’ve all seen and heard it: such and such product is the “best,” the “most” this or the “most” that and similar phrases. Where is the line between false advertising and otherwise acceptable “puffing?”
[Note: I have previously written about the possibilities of protecting slogans in an article called “Protecting Slogans.”]
A case out of the Eighth Circuit Court of Appeals has helped clarify some of these issues. In American Italian Pasta Company vs. New World Pasta Company the Court was called upon to decide if the use of the phrase “America’s Favorite Pasta” by American Italian Pasta Company was false and misleading advertising under the Lanham Act and various state laws.
The Court summarized the facts as follows:
New World demanded that American cease the use of such phrase and American filed the litigation seeking a declaration from the Court that such phrase was not false and misleading advertising but was instead mere puffery.From 1997 to 2000, American manufactured Mueller’s brand (Mueller’s) dried pasta for Best Foods. In the fall of 2000, American purchased Mueller’s and assumed all packaging, distributing, pricing, and marketing for the brand. Since purchasing Mueller’s, American has placed the phrase “America’s Favorite Pasta” on Mueller’s packaging. On various packages, the phrases “Quality Since 1867,” “Made from 100% Semolina,” or “Made with Semolina” accompany the phrase “America’s Favorite Pasta.” The packaging also contains a paragraph in which the phrase “America’s Favorite Pasta” appears. The paragraph states (1) pasta lovers have enjoyed Mueller’s pasta for 130 years; (2) claims Mueller’s “pasta cooks to perfect tenderness every time,” because Mueller’s uses “100% pure semolina milled from the highest quality durum wheat;” and (3) encourages consumers to “[t]aste why Mueller’s is America’s favorite pasta.”
The Court in a footnote cited the Lanham Act which states, in section 43 (a), in part:New World claims American’s use of the phrase is false or misleading advertising, because, according to New World’s consumer survey, the phrase conveys Mueller’s is a national pasta brand or the nation’s number one selling pasta. American and New World agree Barilla sells the most dried pasta in the United States and American’s brands are regional.
Thus, the Court, citing another case, stated:(1) Any person who, on or in connection with any goods . . . uses in commerce any . . . false or misleading description of fact, or false or misleading representation of fact, which –
. . .
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a) (emphasis added).
The Court said:To establish a false or deceptively misleading advertising claim under section 43(a) of the Lanham Act,4 New World must establish:(1) a false statement of fact by [American on its packaging] about its own or another’s product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement. [emphasis supplied]
The Court then analyzed the statement “America’s Favorite Pasta” with the above factors in mind and concluded that such statement was not an actionable statement of fact but mere puffery.Under section 43(a), two categories of actionable statements exist: (1) literally false factual commercial claims; and (2) literally true or ambiguous factual claims “which implicitly convey a false impression, are misleading in context, or [are] likely to deceive consumers.” United Indus., 140 F.3d at 1180. Besides actionable statements, a category of non-actionable statements exists. Id. Many statements fall into this category, popularly known as puffery. Id. Puffery exists in two general forms: (1) exaggerated statements of bluster or boast upon which no reasonable consumer would rely; and (2) vague or highly subjective claims of product superiority, including bald assertions of superiority. Pizza Hut, 227 F.3d at 496-97; United Indus., 140 F.3d at 1180.
Juxtaposed to puffery is a factual claim. A factual claim is a statement that “(1) admits of being adjudged true or false in a way that (2) admits of empirical verification.” Pizza Hut, 227 F.3d at 496 (quoting Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 1986)). To be actionable, the statement must be a “specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact.” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999); cf. United Indus., 140 F.3d at 1180 (noting puffery does not include “false descriptions of specific or absolute characteristics of a product and specific, measurable claims of product superiority”). Generally, opinions are not actionable. Coastal Abstract, 173F.3d at 731.
Puffery and statements of fact are mutually exclusive. If a statement is a specific, measurable claim or can be reasonably interpreted as being a factual claim, i.e., one capable of verification, the statement is one of fact. Conversely, if the statement is not specific and measurable, and cannot be reasonably interpreted as providing a benchmark by which the veracity of the statement can be ascertained, the statement constitutes puffery. Defining puffery broadly provides advertisers and manufacturers considerable leeway to craft their statements, allowing the free market to hold advertisers and manufacturers accountable for their statements, ensuring vigorous competition, and protecting legitimate commercial speech.
The Court also concluded that nothing in the use of the said phrase on the packaging of the product changed the phrase into a statement of fact.“America’s Favorite Pasta” is not a specific, measurable claim and cannot be reasonably interpreted as an objective fact. “Well liked” and “admired” [part of the definition of “favorite”] are entirely subjective and vague. Neither the words “well liked” nor “admired” provide an empirical benchmark by which the claim can be measured. “Well liked” and “admired” do not convey a quantifiable threshold in sheer number, percentage, or place in a series. A product may be well liked or admired, but the product may not dominate in sales or market share.
“America’s Favorite Pasta” also does not imply Mueller’s is a national brand. First, “America’s” is vague, and “America’s,” as well as “America” and “American” used in a similar context, is a broad, general reference. Second, a brand, chain, or product could be America’s favorite without being national.
The Court then discussed whether the results of a consumer survey as to the meaning of the phrase changed the slogan into an actionable misleading statement of fact. The Court, citing a case out of the Seventh Circuit, concluded:The Paragraph and the Phrases fail to transform “America’s Favorite Pasta” into a statement of fact. The Paragraph does not suggest a benchmark by which the veracity of American’s statement can be verified. The Paragraph generally declares the brand has existed for 130 years, Mueller’s tastes great, cooks to perfect tenderness, and is manufactured from high quality grain. We assume, arguendo, the sentence “Taste why Mueller’s is America’s favorite pasta” incorporates the attributes listed in the Paragraph into American’s claim. Two attributes listed in the Paragraph are subject to verification: Mueller’s is made from 100% pure semolina, and the brand is more than 130 years old. New World does not contend these claims are false. The remaining attributes listed in the Paragraph are unquantifiable and subject to an individual’s fancy.
We agree with the Seventh Circuit. To allow a consumer survey to determine a claim’s benchmark would subject any advertisement or promotional statement to numerous variables, often unpredictable, and would introduce even more uncertainty into the market place. A manufacturer or advertiser who expended significant resources to substantiate a statement or forge a puffing statement could be blind-sided by a consumer survey that defines the advertising statement differently, subjecting the advertiser or manufacturer to unintended liability for a wholly unanticipated claim the advertisement’s plain language would not support. The resulting unpredictability could chill commercial speech, eliminating useful claims from packaging and advertisements. As the Seventh Circuit noted, the Lanham Act protects against misleading and false statements of fact, not misunderstood statements. Id. at 886.
The line between statements of fact which, if false or misleading can be actionable, and mere puffery is vague and uncertain and have to be determined on a case by case basis. You should consult with your attorney.
Copyright © 2004 Ivan Hoffman. All Rights Reserved.