Tall-Claims Court ; When Does Advertising 'Puffery' Become Customer Deception?

Article excerpt

Pop quiz: One of the following advertising claims has been ruled illegal. Do you know which one?

A. Snapple: Made from the Best Stuff on Earth.

B. Papa John's: Better Ingredients, Better Pizza.

C. Gillette: The Best a Man Can Get.

D. Burger King: It Just Tastes Better.

All these ad slogans claim superiority, as advertisers are wont to do.

But, so far at least, only one resulted in a half-million-dollar court verdict.

And the answer is ...

B: the proclamation about better ingredients leading to a tastier pizza pie. A Texas jury decided last month that Papa John's slogan, and its comparative ads in general, had illegally damaged chief competitor Pizza Hut.

The judge in the case then ordered the 2,000-unit restaurant chain to change its media advertising, its merchandise, its in- store posters - right down to its pizza boxes.

All these things represent a multiyear branding blitz worth about $300 million, says Jeffrey Edelstein, a partner in the law firm of Hall Dickler Kent Friedman & Wood, which represents Papa John's.

The company is appealing and has been granted a stay - so for now, it can continue to use the contested slogan. A final court decision could be handed down by spring.

Meanwhile, advertising lawyers are contemplating what it all means, and advertisers are wondering if they could be next. "I've gotten calls from other clients, asking if their slogan is safe," says Mr. Edelstein.

He's attempted to reassure them by saying that in his opinion, they have little to worry about. But he concedes he told Papa John's the same thing before Pizza Hut mounted its winning legal challenge.

The case calls into question how advertising "puffery" should be defined and interpreted. Black's Law Dictionary describes puffery as "an expression of opinion [...] not made as a representation of fact."

In other words, it's a subjective point of view, not an objective claim. Inherent in that definition is that no reasonable consumer would be deceived by mere puffery.

So Chevrolet can assert its cars are built like "Like a Rock," and only the overly literal and the hopelessly confused would infer that the cars have the crash-resistant quality of a large boulder. "Consumers," says Edelstein, "do not take slogans seriously."

Another expert in the field, Melvyn Weiss, a prominent class- action lawyer with New York law firm Milberg Weiss Bershad Hynes & Lerach, agrees with Edelstein in this instance, saying that he "would not have brought the pizza case."

All the same, Mr. Weiss cautions that "puffery is not a license to lie." He believes that stronger consumer protection is needed now that buyers and sellers "no longer come to the bargaining table on equal terms, the way they did at the turn of the century."

More and more, says Weiss, "people rely on 'remote' communications, including advertising, to find out what they'll get when they buy something." Those communications must be reliable.

And when products or services don't live up to advertised claims, Weiss can be a pit bull. On behalf of clients, he's already received some $10 billion dollars from insurance companies that he's sued for deceptive marketing practices.

"Conservatives say, 'let the market take care of it; if something doesn't work as advertised, people will stop buying it,' " Weiss scoffs. "But the consequence of that is, a lot of people are getting hurt before they discover that truth. …

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