12/17/2014 03:05 am ET Updated Feb 15, 2015

Puffery or False Advertising?

False advertising lawsuits may be initiated by federal entities such as the Federal Trade Commission, state entities such as an Attorney General, and additionally by consumers and competitors. This comment briefly reviews problem statements that are most likely to result in false advertising litigation. Engage experienced legal counsel in your specific situations.

Lawful puffery or sales talk is characterized by generalized and subjective statements (our product is exciting ...) that a reasonable person is expected to discredit. As statements become more specific and objective (our product has been scientifically proven ...) the very gray line has been crossed into statements that a reasonable person may not be able to evaluate. These statements, if false, are the subject of a false advertising claim. Interestingly, a claim that a product is "improved" or "better" without referring to any specific quantifiable characteristic is typically considered puffery.

The following, in no particular order, are troublesome areas that may result in false advertising litigation:

1. Statements concerning "ingredients." Ingredients have objective characteristics or industrial standards.

2. Statements concerning "surveys." Are the survey results accurately represented?

3. Statements concerning "research" or "science." Is the advertising claim in fact supported by the science?

4. Statements concerning "origin." Certain producers are associated with quality or are considered worthy of aid.

5. Statements concerning "statistics." Whether comparing products or consumer reactions, statistics are objective statements of fact.

6. Statements concerning "comparisons." While competitors may be mentioned, any specific comparisons must be objectively accurate.

7. Statements involving "endorsements." Celebrity lookalikes or soundalikes may result in a lawsuit by both the celebrity and for false advertising.

8. Statements involving "results." Are express or implied results from using the product scientifically accurate?

9. Statements involving "pricing." There are numerous forms of deceptive pricing strategies.

10. Photoshopped images and deceptive before and after images. These are increasingly criticized in commentaries concerning body image and eating disorders and are sometimes the subject of false advertising litigation.

There are multiple issues for advertisers to consider. Any litigation is expensive and distracting. A single false advertising statement may result in litigation even if the advertisement as a whole consists of puffery. There is no bright-line test to distinguish puffery and false advertising. How competitors will react to an advertising campaign must be considered.

On the other hand, from an individual consumer's point of view, class action false advertising litigation frequently results in nominal compensation. Regulatory agencies may not have false advertising as an enforcement priority. Consequently, advertisers and their legal counsel must determine how conservatively or aggressively they wish to approach the line separating puffery and false advertising.