Advertising Puffery?

FTC—the primary government agency responsible for regulating advertising in the United States—favors comparative advertising, because it "encourages product improvement and innovation and can lead to lower prices in the marketplace." The courts, however, will protect only comparative advertising that is not literally false or ambiguous and does not have the tendency to deceive the buying public.

Section 43(a) of the Lanham Act provides a federal cause of action for false or misleading advertising against "[a]ny person who . . . in commercial advertising or promotion, misrepresents the nature, characteristics, quality or geographic origin of his or another person's goods, services, or commercial activities." To prevail on a Section 43(a) false advertising claim, a plaintiff must demonstrate the misrepresentation is one of "fact," by showing the advertising is either literally false or misleading. If the ad is literally false—100% organically grown ingredients—a court