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Unfair competition: Puffery or false advertising?

Jun 28, 2021 | Business Litigation

Your business may not be in the advertising sector, but publicizing your products or services through ads and marketing will likely still be crucial. Because advertising may not be in your area of expertise, you may run into some legal complications for unfair competition actions.

One example of this is to confuse puffery with false advertising.

What is puffery?

We see a lot of puffery in advertising today, and it is not illegal. It involves exaggerations or statements meant to attract buyers rather than deceive them. Puffery does not act as a guarantee, and it is typically easy to distinguish puffery from false advertising because it is subjective.

Let’s imagine a local coffee shop. To advertise lawfully, they might use puffery phrases like:

  • The best coffee in the world
  • A customer favorite
  • More delicious than the rest
  • No one gives better service

These types of statements are somewhat vague, and they do not make specific promises. Thus, they would likely be lawful puffery claims.

When puffery becomes false advertising

Making grandiose statements to attract customers is one thing; misleading them or making false statements is something else. 

False advertising consists of efforts that deceive consumers, use baseless guarantees or present figures without having the data to back them up. Some examples of false advertising can include statements like:

  • 50 percent bigger than the competition (when there is no research to back this up)
  • FDA-approved (when it is not)
  • Safe for all ages (when it is not)
  • Made in the USA (when it is not)

Other tactics can include using misleading before and after pictures or giving inaccurate information about ingredients. 

When companies make these claims, they could face allegations of deceptive advertising, which can have costly penalties.

Defending against false advertising claims

Knowing the difference between these two approaches may be crucial for business owners. Failure to do so could mean making avoidable mistakes in an advertising plan that lead to unfair competition claims rather than launching a successful campaign.

If a false advertising claim does arise, proving the materials are puffery can be an effective strategy for businesses.