New York consumers enjoy broad protections under state law against false advertising. Consumers have the right to receive truthful information about goods and services. A misunderstanding or customer dissatisfaction can quickly turn into a claim of false advertising. If this happens, your business may be on the receiving end of a claim that it has intentionally misled customers.
However, puffery is legal in advertisements. Puffery is generally defined as subjective, often boastful statements that most people wouldn’t take literally, like “the world’s best pizza.” This article delves into the key differences between puffery and false advertising.
If your business is facing allegations of deceptive advertising, our experienced New York business litigation attorneys can help.
What Is False Advertising?
In general, false advertising is any advertising that misleads consumers or potential customers in a significant way. It is designed to intentionally lure the customer into making a purchasing decision through deception. For example, labeling food items as “no sugar” when the products actually contain sugar is false advertising.
The Federal Trade Commission is responsible for enforcing rules against unfair trade practices at the federal level. Each state has its own laws about what is considered false advertising, and businesses may face lawsuits and criminal charges for false advertising claims. The legal definition of false advertising can differ from state to state.
New York False Advertising Law
False advertising comes in many forms in New York. It can be used to describe a misleading or false product description or label. Or, it could take the form of failure to disclose material information to the consumer. A picture that accompanies the good or service can even be considered false advertising. Often false advertising claims concern the price, quality, or purpose of a product or service.
Say a consumer is promised the latest edition of a good for an unbelievably low price. He or she goes to buy it, but once at the store, is shown an older version for that price. This is a classic bait-and-switch tactic.
New York General Business Law Section 350 regulates false and misleading advertising. Under this statute, a plaintiff can request civil damages against a company for false advertising.
The plaintiff may even be able to win attorney’s fees and court costs under section 350. Because plaintiffs can win back their attorney and court costs, this statute often encourages litigation against allegedly wrongful conduct. However, the company may have a defense against the allegation of false advertising.
What Is Puffery?
Puffery is generally defined as exaggerated or vague claims that are considered opinions rather than factual statements. As mentioned above, false advertising must concern a material aspect of the product or service. This usually involves deceptive statements about a product’s or service’s price, quality, or purpose.
Companies are allowed to “puff up” their image by conveying subjective views or opinions concerning their goods and products. A business that expresses an opinion about itself, rather than incorrect factual statements uses puffery instead of false advertising.
Puffery is often described as boasting that reasonable people would not take literally. Puffery statements are generally opinions that cannot be proven or disproven.
For example, calling yourself “the best restaurant in the world” is puffery. It cannot be proven true or false, and no reasonable person would take it as a literal qualifier. A customer may dine there and hate their food. But they cannot go to court and allege that the “world’s best restaurant” statement is false advertising.
The key difference between false advertising and puffery is whether the advertising contains objective statements or expresses a mere opinion. Factual claims can be proven true or false. However, the line between opinion and fact is sometimes blurry. This is where having an experienced New York business litigation attorney can help.
Is Puffery Illegal?
Puffery is not prohibited by most advertising laws. It is considered legal and safe for marketers to use, provided it remains in the realm of opinion rather than factual claims.
If your business has been accused of false advertising, more than a court case is on the line. Your company’s good name and reputation could also be jeopardized. We will investigate the allegations concerning the good or product in question, and let you know your legal options. Puffery may be a defense, along with others, depending on the circumstances in your case.
Puffery Vs False Advertising
Here is the key distinction between puffery and false advertising:
- Subjective, vague statements that can’t be proven true or false are generally considered mere puffery.
- Specific, measurable claims about a product’s qualities or characteristics can cross the line into false advertising if they are misleading or deceptive.
Let’s take a closer look at how the Federal Trade Commission differentiates puffery from false advertising.
Objective Claims
The FTC concentrates on challenging false or misleading claims about objective facts, especially those that are difficult or expensive for consumers to verify themselves. For example, claims like “fat-free” or “proven effective by scientific tests” would be scrutinized more closely than subjective statements like “world’s best” or “great taste.”
Reasonable Consumer Standard
The FTC evaluates claims from the perspective of a reasonable consumer. If a claim is likely to mislead a reasonable consumer about material aspects of a product or service, it may be considered deceptive rather than mere puffery.
Measurability and Provability
If a claim contains elements or attributes that are measurable or objectively provable as true or false, it is more likely to be considered an actionable advertising claim rather than puffery.
Materiality
The FTC focuses on claims that are material, meaning they are likely to influence a consumer’s purchasing decision.
We’re Ready To Help Defend Your Company
The New York business litigation attorneys of Rosenbaum & Taylor defend the rights and interests of businesses. We have had extensive experience handling numerous allegations, including those of false advertising. The important thing is to act quickly to protect your business. Give us a call today to discuss your case.
