Pasta Puffery

I found this interesting article regarding puffery. I thought it was very interesting that outlandish claims were actually less likely to result in civil action, as no reasonable person would rely on same. Yet, Canada has a slightly different view, where a 'favorite' label would actually require some kind of verification of a claim, like market share.


A recent decision of the United States Court of Appeal for the 8th Circuit concluded that use of the statement “America’s Favourite Pasta” was not false or misleading advertising on the basis that the statement was simply commercial “puffery.” American Italian Pasta Company sold pasta in association with the Mueller’s brand in the United States. The packaging for various sizes and types of dry pasta contained the statement “America’s Favourite Pasta.” New World Pasta Company claimed that use of the phrase violated the Lanham Act. The Act provides that any person, who in connection with any goods, uses a false or misleading description of fact, or a false or misleading representation of fact, is liable in a civil action to any person who is damaged by such an act. The Court stated that the Act applies to two categories of actionable statements: . Literally false factual commercial claims, and . Literally true or ambiguous factual claims which implicitly convey a false impression. However, a category of a non-actionable statement exists which is popularly known as “puffery.” Puffery exists in two general forms: . Exaggerated statements of bluster or boast upon which no reasonable consumer would rely, and. Vague or highly subjective claims of product superiority, including bald assertions of superiority.Typically, a factual claim can be judged as true or false by empirical verification. To be actionable, a statement must be a specific measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact. 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. 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 will be considered as puffery. By defining puffery in this fashion, advertisers are left with considerable leeway to craft their advertisements, allowing the free market to hold them accountable for their statements, which in turn ensures vigorous competition and protects legitimate commercial speech. When these principles were applied, the Court concluded that the phrase “America’s Favourite Pasta” by itself was not a statement of fact. It was not a specific measurable claim and could not be reasonably interpreted as an objective fact. The phrase was subjective and vague. In Canada, the Competition Act precludes the making of a “representation” that is false and misleading or a statement of product performance or efficacy that is not based on adequate and proper tests. This provision is broader than the U.S. legislation. Canadian cases have given effect to a puffery defence for exaggerated statements on which no reasonable consumer would rely. However, the same cannot be said for claims of product superiority. The result in a case involving “Canada’s Favourite Pasta” could be different unless the advertiser had the largest market share or other objective reasons to substantiate the claim.

http://www.hg.org/articles/article_432.html