Best Product - When is it False Advertising or Just Puffing?


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We have all seen commercials making claims that our common sense told us simply cannot be true. For example, miracle weight loss supplements or exercise equipment. And yet, somehow these commercials make it to television and are not immediately removed as part of a lawsuit. How is that? What is the difference between false advertising and simply inflating the truth about your product (a practice called “puffing”)?

False advertising is, in essence, exactly what the name implies: the passing off of goods or services as something they are not. False advertising is prohibited and actionable under federal law and by various state statutes which prohibit deceptive trade practices and unfair competition. The Federal Trade Commission, competitors and the state attorneys general of most states have the power to bring suit to stop false advertising, and in many states consumers can bring suits, as well.

The federal law against false advertising allowing competitors to bring suits is known as the Lanham Act. There are a number of requirements that must be met before a private person can sue for a Lanham Act violation. First, only competitors have standing to bring a Lanham Act suit in federal or state court, so a potential plaintiff can only sue for the false advertising of its competitors. Next, a communication must be made in commercial advertising or in the promotion of goods and services. Third, the communication must contain a false or misleading statement, description, or representation of fact which misrepresents the nature, characteristics, qualities or geographic origin of an advertiser’s or its competitor’s goods, services or commercial activities. Statements about a manufacturer’s ability or size can be considered false advertising, if they relate to its products or services or its ability to deliver products or services. And, fourth, the false statement must be material to a consumer’s purchasing decision.

Some state laws are more expansive, allowing consumers, and not just competitors, to sue for false advertising. Each state's laws are different, and some are based on court decisions, not simply statute, so it is important to discuss any potential claims you may have with a qualified, experienced attorney in your jurisdiction.

False representations are often what people mean when they say “false advertising.” But, there is a difference between false representations and exaggerations. “Puffery,” or exaggerations contained in advertisements that are not actionable as false advertising, are essentially exaggerated claims that are so obvious that a consumer simply ignores them. For example, claims like “number one,” “best,” or “greatest” are generally considered puffing, provided these claims are not being supported by a supposed authority. For example, if an advertiser claims their car is the “best looking” in its class, that is puffing, but if the advertiser claims a car is “rated best” by some authority, and it is not true, that is false advertising.

So, getting back to the claims of weight loss drugs and exercise equipment, how do they avoid false advertising claims? Well, many of them are not. In fact, these are some of the most commonly pursued types of advertisers as far as the FCC is concerned. The ones that escape use a combination of puffing, pseudo-science and loopholes in supplement laws to skirt the issue of their advertisements being patently untruthful. So, unfortunately, claims that taking some pill will help you lose weight, or doing some workout routine will give you six-pack abs are likely to remain common late night informercial fare for years to come.

Nevertheless, if you believe you have been injured by a false advertisement, you should contact your state's attorney general's office or the Federal Communications Commission. You may also want to contact a local attorney to see if you have a private claim against the advertiser in your jurisdiction.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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