Puffery is a wonderfully named term that refers to those bombastic advertising claims you’re inundated with every day–you know the ones, “world famous bagels” or “the best deep-dish this side of Chicago.” As the wonderfully named Judge Learned Hand put it, puffery is talk “which no sensible man takes seriously.”
The phrase caveat emptor, let the buyer beware, is a long established concept in the legal world. As Judge Hand continued in his opinion, “neither party usually believes what the seller says about his own opinions, and each knows it.” Puffery is the concept that occupies this middle ground. It’s unlikely those bagels actually are world famous, but it’s not false advertising–it’s just a sales pitch, mere conjecture, and both buyer and seller are in on the secret. But what are the limits on puffery in modern media? Just what happens to caveat emptor when we’re not even aware we’re being sold something?
Enter Eric Schneiderman, New York’s Attorney General. In September 2013, the office of the AG wrapped up a year-long sting operation to catch and fine companies who post fake reviews on sites such as Yelp, Google Local, and Citysearch. All it took was a fake yogurt shop in Brooklyn, some solicitations for some less-than-honest advertising partners and the trap was set.
The offers came pouring in–anywhere from $1-10 for a single positive review. The authorities investigated their leads and set their marks. After the dust had settled, 19 companies, both advertising firms and small businesses, were fined a combined $350,000. Ouch.
So what was the charge? Lying on the internet by itself isn’t a crime–however, in New York and many other states lying in advertising is. But isn’t that the essence of puffery?
The key distinction here is who’s doing the selling. We often search peer reviews to cut through the marketing, to read unbiased opinions. The law may expect a reasonable man to take advertising with a grain of salt; however, when the ads are hidden or objectively false the rules change. In this instance, hiding the nature of the posts was deceptive and deceptive advertising is illegal in New York.
How Law from 1946 Can Govern Everyone’s Internet
Like New York, many other states have developed their own code for advertising, but even if your state doesn’t have similar laws this kind of activity may still fall under federal law. At the federal level we’ve had the Lanham Act, the primary body of federal trademark law, for decades–so just what does a set of trademark laws enacted in 1946 have to say about internet reviews?
More than anyone would have thought.
In its inception, section 43(a) of the Lanham Act began as a short squib about false and misleading representations. Since then, the statute has seen a well-documented coming of age and an incredible rise to power transforming into the primary law in which unfair competition, unregistered trademarks, and trade dress claims are challenged under. And, according to some courts, fake internet reviews–which can qualify as advertising under the Lanham Act.
Being advertising isn’t bad, however the act provides a cause of action to sue those who run factually misleading ads–and that can make puffery a delicate issue. To put it simply, despite any state law, or lack thereof, you’ll need to stay within the lines off acceptable puffery.
It’s safe to say that stopping fake Yelp reviews was not on the radar of the Act’s drafters. However, as technology outpaces our laws we’re forced to make do with what we have until they can be updated or rewritten as needed. So where do we go from here?
Well, Where Do We Go from Here?
While we wait for the courts, congress, and the states themselves to clarify the laws the best bet for business owners and marketers is to understand the general limits of puffery. At base, puffery is any word or phrase that would not reasonably be taken as a factually reliable claim.
For example: the National Advertising Division, a self-regulating arm of the advertising industry, found Tropicana’s boast of the “world’s best fruit and vegetable juice” to be mere puffery. However, had they it was the best because of the taste or freshness of the ingredients, there likely would have been some issues–provided they couldn’t prove it.
What the means for businesses is a few things: first, stay away from implementing fake reviews. Aside from having the attorney general bearing down on you it may open you up to lawsuits from competitors. As far as advertising goes, be sure of what you say. Nothing can stop you from saying “world-famous” if it’s true–but if puffery is what you’re after keep it as your opinion, something that no sensible man would take seriously.
That’s the heart of puffery: larger than life claims the no sensible man would take seriously–but that quite a few may be influenced by.