ADVERTISING LAW LITIGATION UPDATE: DURACELL CLAIMS FOUND TO BE PUFFERY
D. John Hendrickson
In a decision last month by the U.S. District Court, Northern District of California, dismissing a putative class action alleging false advertising by Proctor & Gamble and Gillette, the Court dealt with an important recurring issue in advertising law: when does a boastful claim in ad copy rise to the level of an objective claim of product efficacy, and when is it merely puffery?
Fortunately for the defendants and their line of Duracell Coppertop AA and AAA batteries with “Duralock Power Preserve Technology,” Judge Lucy H. Koh determined that the claims, “with Duralock Batteries , ‘you will always have access to power’ when needed,” and that Duralock batteries are “a power solution [consumers] can trust,” were puffery. These statements, according to Judge Koh, “say nothing about the specific characteristics or leakage rate of Durlock Batteries. Rather, these statements are vague product superiority claims that are no more ‘weighty than an advertising slogan.’”
But there is no bright line when evaluating an advertising claim for puffery. Puffery is usually described as an advertising claim that is so subjective – with such a high degree of hyperbole – that a reasonable consumer would not expect it to be literally true. Expressed another way, puffery is a claim that, on its face, appears to be immune from objective verification. That is why, by way of example, it is generally acceptable to speak of one’s concert as “the greatest event in town” or of an individual’s singing talent as being “truly a gift from heaven.”
But be careful. A claim that may, in isolation, appear to be mere puffery may rise to the level of an objective claim in the context of surrounding ad copy.
Advertising lawyers find some comfort in Pizza Hut, Inc. v. Papa John’s International, Inc., 227 F.3d 489 (5th Cir. 2000), in which the Court found that the slogan, “Better ingredients. Better pizza,” standing alone, was not an objectifiable statement of fact upon which consumers would be justified in relying, and thus not actionable under the Lanham Act. But the Court also found that, by using the slogan, “Better Ingredients. Better Pizza,” in combination with a series of ads comparing Papa John’s sauce and dough with the sauce and dough of its competitions, Papa John’s gave quantifiable meaning to the word “Better,” thereby elevating to a potentially actionable claim.
Papa John’s saving grace was, at least in part, the Court’s finding that the plaintiff failed to produce sufficient evidence of material reliance by consumers on these ads in their purchase decisions, thus finding that that a claim under the Lanham Act must fail. But the analysis of the Court as described above clearly set forth a distinction with a difference. Puffery cannot be determined in a vacuum. The claim at issue must be evaluated in the context of the surround ad copy.
In National Advertising Division Case # 3937, Johnson Outdoors, Inc. challenged print advertising by Atomic Aquatics, Inc., claiming that its headline, “’Best of the Best’…Again,” which appeared in Rodale’s Scuba Diving specialty magazine, was a false and unsubstantiated claim of competitive superiority for Atomic Aquatic’s scuba regulator. How was this different from “Better Ingredients. Better Pizza,” or “a power solution [consumers] can trust?” In defending the claim, Atomic Aquatics never even asserted a puffery defense. Rather, both parties acknowledged in their arguments that the primary issue was the accuracy and the impact of certain laudatory quotes from a lab testing facility that were used in the ads as the basis for the “Best” claim, thus conceding the distinction articulated in the Papa John’s case. NAD ultimately determined that the advertiser had, in fact, provided a reasonable basis for its “Best” claim, but the take-away from the case is clear. Context is everything when analyzing the intent behind an advertising claim.
When it comes to legal review of any claim that might qualify as puffery, advertisers would be well-advised to provide the advertising lawyer with both the claim and the surrounding copy so that the claim can be evaluated in its proper context. In addition, if the claim is going to be used on a recurring basis with other surrounding ad copy, the entire campaign should be vetted as a whole in order to “best” determine the likely meaning of the claim to consumers. The Duracell case is a reminder that an advertiser’s bragging rights don’t come without a risk of careful scrutiny by competitors and consumers.