Sometimes advertising is like real estate, where the three most important things are: location, location, location. In advertising, it is often: context, context, context. And never more so than with puffery.
Two recent National Advertising Division (NAD) decisions provide a useful reminder that what an advertiser puts around superlative claims—that is, the context—is key to determining whether the claims are mere puffery or require substantiation. In advertising law, puffery generally refers to exaggerated or subjective claims that consumers would not reasonably understand as objectively provable.
The two decisions also show how easily context can change the meaning of a claim. Ratings, reviews, or measurable product attributes can turn what looks like harmless boasting on its own into a claim that requires substantiation.
The first case involved sunscreen, with advertiser Vacation, Inc. claiming to make the “World’s Best-Smelling Sunscreen.” The superlative phrase was used across product labels, retail displays, social media, and its website. Challenger Beiersdorf argued that given the overall context, substantiation—which the advertiser did not have—was required.
When Advertising Puffery Becomes Measurable
As pointed out by the challenger, an ASTM standard for measuring smell preferences does exist. That issue notwithstanding, the advertiser defended against the challenge by arguing that “World’s Best-Smelling Sunscreen” is classic puffery.
The claim appeared on packages, product labels, and retail signage. On its website, “World’s Best-Smelling Sunscreen” also appeared in quotation marks immediately above five stars, a “4.8/5.0” score, and a reference to more than 13,000 reviews.
Ultimately NAD agreed with the advertiser that the claim was mere puffery on packages, product labels, and retail signage. Given both the inherently subjective nature of smell and the exaggerated “World’s Best” formulation, NAD concluded that standing alone, the claim was unlikely to be understood by reasonable consumers to be objectively provable.
Unfortunately for Vacation, NAD’s analysis did not end there.
As positioned in context on its website, NAD concluded that consumers could reasonably understand “World’s Best-Smelling” not simply as a boast, but as a statement reflecting the measured preferences of thousands of reviewers. By tying the claim to ratings and reviews, the advertiser transformed what otherwise looked like unmeasurable exaggerations into something supported by objective evidence.
NAD therefore recommended that Vacation modify its website to avoid conveying that the “World’s Best-Smelling Sunscreen” claim was objectively substantiated by consumer reviews.
NAD’s two different conclusions were important practically. Changing website copy can generally be accomplished quickly and without significant expense, while in contrast, changing packaging and retail displays can require significant time and expense. By prevailing on the puffery issue in those contexts, Vacation avoided a potentially expensive real-world remedy.
Only weeks later, NAD considered a similar question in a different product category. Following a challenge by Mueller Sports Medicine, NAD reviewed Howies Hockey’s claim that its athletic and hockey tape products offer the “World’s Highest Quality.” On product packaging and point-of-sale displays, the claim appeared by itself, without reference to particular competitors or measurable product features.
NAD Examines Product Superiority Claims
NAD concluded that, in that context, the statement was puffery, where the advertiser was expressing corporate pride rather than asserting an objectively measurable claim.
But like with the Vacation challenge, the advertiser ran into trouble using the phrase in a different context. On webpages, social media, print advertisements, and third-party retail sites, “World’s Highest Quality” appeared alongside descriptions of measurable attributes, including adhesive strength, tensile strength, durability, consistency, and ease of tearing. NAD concluded that reasonable consumers could take away an objective claim about product performance requiring substantiation.
NAD therefore split its recommendation by context. While it found “World’s Highest Quality” to be mere puffery by itself on product packaging and point-of-sale displays, it recommended that Howies discontinue or modify the claim when it appears in close proximity to measurable product attributes. NAD also recommended that Howies make bona fide, good-faith efforts to have the claim modified or removed from third-party retail websites.
Context Can Trigger Claim Substantiation
Taken together, Vacation and Howies provide a clear illustration of how NAD analyzes puffery. The words did not change; the context did. For Vacation, ratings and reviews suggested evidence behind the boast. For Howies, proximity to measurable product attributes suggested objective product superiority.
Context can turn an otherwise subjective superlative into a message consumers may reasonably expect an advertiser to substantiate.
Finally, there is also an important practical lesson for advertisers defending against NAD challenges. Neither advertiser convinced NAD that its challenged slogan was puffery everywhere it appeared. But both obtained favorable determinations concerning real-world packaging and point-of-sale materials where the claims stood alone.
That distinction can matter enormously. A webpage, social media post, or digital advertisement can usually be changed quickly and inexpensively. However, reworking packages and retail displays may mean redesigning artwork, reprinting labels, discarding existing materials, coordinating with retailers, and waiting for revised products to move through the supply chain. The difference between changing physical packaging versus only changing digital advertising can translate into considerable time and money.
Accordingly, when it comes to puffery, pay attention not only to what you say, but also how you say it and what you put next to it. Sometimes the difference between harmless boasting and a claim requiring substantiation is what makes the claim smell like something more. For more insights into advertising law, bookmark the All About Advertising Law blog and subscribe to our monthly newsletter. To learn more about Venable’s Advertising Law services, click here. And listen to the Ad Law Tool Kit Show—a podcast from Venable.
