Small Changes To An Ad Can Make Big Differences In A Puffery Analysis

When advertisers are accused of making unsubstantiated claims, a common defense is that the claim is just "puffery" for which no substantiation is required. Puffery exists as either 1) exaggerated statements of bluster or boast upon which no reasonable consumer would rely, or 2) vague or highly subjective claims of product superiority, including bald statements of superiority.

In recent months, the National Advertising Division ("NAD") has weighed the defense of puffery in three cases, and a federal district court addressed it in a case last month. In all four cases, the advertiser prevailed. A review of those decisions, involving different forms of puffery and different products, illustrates how the NAD and courts try to approach the subject.