Tall-claims court

When does advertising 'puffery' become customer deception?

Pop quiz: One of the following advertising claims has been ruled illegal. Do you know which one?

A. Snapple: Made from the Best Stuff on Earth.

B. Papa John's: Better Ingredients, Better Pizza.

C. Gillette: The Best a Man Can Get.

D. Burger King: It Just Tastes Better.

All these ad slogans claim superiority, as advertisers are wont to do.

But, so far at least, only one resulted in a half-million-dollar court verdict.

And the answer is ...

B: the proclamation about better ingredients leading to a tastier pizza pie. A Texas jury decided last month that Papa John's slogan, and its comparative ads in general, had illegally damaged chief competitor Pizza Hut.

The judge in the case then ordered the 2,000-unit restaurant chain to change its media advertising, its merchandise, its in-store posters - right down to its pizza boxes.

All these things represent a multiyear branding blitz worth about $300 million, says Jeffrey Edelstein, a partner in the law firm of Hall Dickler Kent Friedman & Wood, which represents Papa John's.

The company is appealing and has been granted a stay - so for now, it can continue to use the contested slogan. A final court decision could be handed down by spring.

Meanwhile, advertising lawyers are contemplating what it all means, and advertisers are wondering if they could be next. "I've gotten calls from other clients, asking if their slogan is safe," says Mr. Edelstein.

He's attempted to reassure them by saying that in his opinion, they have little to worry about. But he concedes he told Papa John's the same thing before Pizza Hut mounted its winning legal challenge.

The case calls into question how advertising "puffery" should be defined and interpreted. Black's Law Dictionary describes puffery as "an expression of opinion [...] not made as a representation of fact."

In other words, it's a subjective point of view, not an objective claim. Inherent in that definition is that no reasonable consumer would be deceived by mere puffery.

So Chevrolet can assert its cars are built like "Like a Rock," and only the overly literal and the hopelessly confused would infer that the cars have the crash-resistant quality of a large boulder. "Consumers," says Edelstein, "do not take slogans seriously."

Another expert in the field, Melvyn Weiss, a prominent class-action lawyer with New York law firm Milberg Weiss Bershad Hynes & Lerach, agrees with Edelstein in this instance, saying that he "would not have brought the pizza case."

All the same, Mr. Weiss cautions that "puffery is not a license to lie." He believes that stronger consumer protection is needed now that buyers and sellers "no longer come to the bargaining table on equal terms, the way they did at the turn of the century."

More and more, says Weiss, "people rely on 'remote' communications, including advertising, to find out what they'll get when they buy something." Those communications must be reliable.

And when products or services don't live up to advertised claims, Weiss can be a pit bull. On behalf of clients, he's already received some $10 billion dollars from insurance companies that he's sued for deceptive marketing practices.

"Conservatives say, 'let the market take care of it; if something doesn't work as advertised, people will stop buying it,' " Weiss scoffs. "But the consequence of that is, a lot of people are getting hurt before they discover that truth."

Interestingly, when the same claim is applied to two different products, the claim can be objectionable and illegal in one case, and perfectly fine in the other.

In court, a pharmaceutical company saying that a given drug is "faster-working and more effective" will likely be held to a higher standard of proof than a hardware store hawking a brand of paint stripper with the same claim.

One panel of judges held that "when an article of clothing is proclaimed to be more aesthetically pleasing than competitors' products, consumers cannot expect that this quality of the clothing has been verfied. But when a drug is held out to consumers as superior, this is as much a factual representation ... as a claim that a product is pure gold."

Gunnar Waldman is no stranger to the claims wars. Mr. Waldman is the director of marketing and communications at the National Advertising Division (NAD) of the Council of Better Business Bureaus. In the NAD, advertisers' representatives join BBB officials to investigate complaints about perceived deceit in certain ads.

He recalls with a laugh that at times, the NAD has had to check the veracity of a pet-food manufacturer's claim that most dogs prefer its brand.

The NAD members stopped short of holding a taste test themselves, but did look at the statistical relevance of the number of dogs who'd picked one brand of kibbles over another.

"We also checked if the bowls had been equally clean before the people put the food in," says Waldman.

Another time, the panel had to decide whether one brand of cat litter indeed "clumps" more than a competing product.

Is this any way for intelligent adults to spend their time?

"Absolutely. Advertisers should be held to a standard of accuracy and truth," Waldman counters. "For every kitty-litter case, there may be one where the advertiser makes claims to a vulnerable demographic.... A diet company promising you can blast off 50 pounds in two weeks.

"So we care even about the seemingly frivolous or 'less-important' cases," he says. "The issues at stake - truth in advertising - are always broader than the products themselves."

All this talk about puffery and legally actionable claims appears to have a chilling effect on some admakers. Michael Dweck, founder and creative director of Dweck Advertising, confesses to jitters when it comes to making ad claims. "It's a dangerous area," he says. "So the only claims we'd make ought to be sufficiently humorous, exaggerated, and far-fetched that no one will take them seriously."

And so, a television-ad campaign for Pepsi, in which a student is shown winning a Harrier jet for having racked up a pile of points in the Get Pepsi Stuff challenge, draws no legal fire.

But Chris Wall, an executive creative director at advertising giant Ogilvy & Mather, is hardly fazed. "The most-powerful advertising tends to be fundamentally truthful anyway," he finds. "The trick is finding an honest point of advocacy for a product and then presenting it in a way that moves people, catches their attention, that they remember."

As for the Papa John's brouhaha, Mr. Wall says that "better ingredients, better pizza" is a fairly general and subjective statement. "It's hard to see how it harms Pizza Hut, other than by being true. But then, it's not exactly the most original claim in the world, either."

(c) Copyright 2000. The Christian Science Publishing Society

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