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Marketing puffery refers to the legal use of subjective and boastful claims in advertising. Unlike false advertising, marketing puffery deals with opinions and is permissible under advertising law.
The key difference between puffery and false advertising is whether a claim is subjective opinion or an objective, verifiable fact. False advertising intended to deceive or mislead a consumer and influence a purchasing decision.
Examples of marketing puffery
- A mattress company advertising its product as “the softest mattress”. The idea of softness is a subjective experience that cannot be objectively measured across all consumers.
- The slogan “The Ultimate Driving Machine,” used by BMW. While many may enjoy the car, it is not a measurable fact that it is the “ultimate” driving machine.
- A restaurant claiming to have the “world’s greatest pizza”. This is an expression of opinion, not a statement of fact, as taste is subjective.
While puffery itself is legal, advertisers can get into trouble if a claim, even an exaggerated one, becomes specific and provable. The context of the entire marketing campaign matters.
For example, Papa John’s slogan, “Better Ingredients. Better Pizza.,” was initially considered puffery because “better” is subjective. However, other ads in the campaign made specific, measurable comparisons to competitor ingredients, which shifted the claim from subjective opinion to potentially misleading fact.
In a case against Red Bull, the energy drink’s famous slogan “Gives You Wings” was found by a judge to be more than harmless puffery. The court ruled that the ads implied more energy and performance than a cup of coffee, an objective claim that was untrue. The company settled for $13 million.
Regulators like the U.S. Federal Trade Commission (FTC) determine if an ad is deceptive by evaluating it based on three core criteria:
1. Likelihood to mislead
The FTC does not need to prove that consumers were actually misled; it just needs to show that the ad has the tendency or capacity to deceive. The investigation looks at the overall impression conveyed by the advertisement, considering the context, including the ad’s words, phrases, and pictures. A literally true statement can still be deceptive if it is presented in a misleading way.
The FTC examines both “express” and “implied” claims:
Express claims are made directly in the ad. For example, “ABC Mouthwash prevents colds” is an express claim that the product will prevent colds.
Implied claims are made indirectly through inference. For example, claiming that “ABC Mouthwash kills the germs that cause colds” implies that the product will prevent colds, even though it does not explicitly say so.
2. Reasonable consumer standard
The FTC views the ad from the perspective of a “reasonable consumer”—the typical person looking at the advertisement. The agency does not hold advertisers liable for unreasonable or idiosyncratic interpretations of their ads.
If an ad is targeted to a specific audience, such as children or the elderly, the “reasonable consumer” is a typical member of that group. The FTC will consider how a typical member of that specific audience would interpret the claim.
3. A claim is considered “material” if it is important to a consumer’s decision to buy or use the product.
Material claims typically involve:
- Product performance or features — what the product does.
- Safety — whether the product poses a risk to consumers’ health or safety.
- Price and cost — the price of the product, or the existence of any hidden fees.
Health and safety claims: These are held to a higher standard and generally require “competent and reliable scientific evidence” for substantiation.
Omissions can be deceptive
Deception can also occur through the omission of important information. An ad can be deceptive if it fails to include information that would leave consumers with a misimpression about the product.
For instance, an ad for a collection of books that does not disclose that the versions are abridged would be deceptive, as this information is material to the consumer’s purchasing decision. Similarly, failing to disclose a material connection between an advertiser and an endorser, like a paid endorsement from an influencer, is a deceptive practice.
Conclusion
Beyond proving that an ad is misleading, the FTC also requires advertisers to have a “reasonable basis” for all objective claims before the ad is disseminated. This concept is called “prior substantiation.” The type of evidence required depends on the claim, but for health and safety claims, “competent and reliable scientific evidence” is generally needed.
The FTC’s position is: “If you don’t know whether your representations are true, then you don’t have a reasonable basis for making them”.
From the Coach’s Corner, here are more helpful articles to maximize your marketing and sales:
The 7 Steps to Higher Sales — Secrets for sales success – seven steps to higher sales, five value perceptions that motivate customers to buy, and the three-step process for overcoming sales objections.
Marketing Strategies that Will Hit a Bullseye for Gold — Use these precautions to connect with your target customers.
The 6 Secrets of Becoming a Winning Sales Organization — Companies with optimal revenue naturally have great sales organizations. Why? Such companies share six common traits that are critical for their sales success.
How You Can Best Profit from Word-of-Mouth Advertising, Customer Service — To increase your sales revenue with word-of-mouth advertising, here are 10 tips.
Secret to Success in an Uncertain Economy: Expand Marketing — Authoritative research has shown businesses are self-destructing when they cut back on marketing in downturns.
“You can’t sell anything if you can’t tell anything!”
-Beth Comstock
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