Devoted to Corporate Attorneys, Corporate Lawyers, and Corporate Counsel

The following is provided for educational purposes, and not meant to be legal advice.

In the United States, comparative advertising is defined as advertising (including informal oral discussions with, or letters addressed to a limited number of, targeted customers) that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration, or other distinctive information.

Comparative advertising is allowed when:

(a) it is truthful and not deceptive, and

(b) there is adequate substantiation for all objective product claims before disseminating the ad. 

A deceptive ad is one that contains a material misrepresentation or omission that is likely to mislead a customer’s reasonable expectations, and affects the customer’s conduct or decision with regard to the product or service. 

Information is material when it concerns:  cost, efficacy, durability, performance, warranties, quality, or a finding by another entity regarding the product. 

Examples: 

(a)  False oral or written representations.

(b)  Misleading price claims.

(c)  Failure to perform promised services.

(d)  Failure to meet warranty obligations.

Prior to disseminating an ad, advertisers must have support to substantiate the claims.  Readers are less likely to rely on claims for products and services if they know the advertisers do not have reasonable basis for believing them to be true.

Puffery statements do not require substantiation.  Puffery statements are obviously exaggerated statements which reasonable customers would not take seriously or believe are communicating any claim about an advertised product or service. 

Factors to distinguish puffing statements from objective claims include: 

(a)  whether the statement is general or specific, with general statements indicating overall superiority more likely to be considered puffing;

(b)  whether the statement is capable of measurement, with non-measurable statements more likely to be considered puffing;

(c)  whether the statement is couched in terms of fact or opinion, with opinion statements more likely to be considered puffing. 

Examples of puffery statements:  “The Ultimate Driving Machine” for BMW automobiles; “Nobody Does It Like We Do” for McDonald’s; “You Can Travel the World Over and Never Find a Better Beer” for G. Heilerman Brewing Company