The Line Between False Advertising And “Puffery”

business litigation

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. How do you defend against these claims in court, and avoid paying substantial damages and court costs? 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 purchasing a good or service that did not ultimately benefit them. In other words, the consumer failed to get the benefit of the transaction into which he or she entered.

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. This allegation usually concerns 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’s 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. But the company may have a defense against the allegation of false advertising.

What is “puffery”?

As mentioned above, false advertising must concern a material aspect of the product or service. This usually implicates the price, quality, or purpose. Companies are free, however, to “puff up” their image by conveying subjective views or opinions concerning their goods and products. In other words, a business that expresses an opinion about itself, rather than incorrect factual statements, is free from blame.

Puffery is often described as expressive views that no reasonable person could take literally. They are generally opinions that cannot be proven or disproven. For example, calling yourself “the world’s best restaurant” 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 difference is whether the advertising is stating objective truth or mere opinion. If it is a truthful statement, or allegedly truthful one, it can readily be proven true or false. But the line between opinion and fact is sometimes blurry. And this is where having an experienced New York business litigation attorney can help.

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.

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.

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