It is a topic that I have written on before—the law of “puffery.” Check out my post on The Best Allegation in a Lawsuit. The concept is familiar. Most of us probably tend to be wary of a salesperson’s boasts and are apt to take his or her claims about a product with a grain of salt.

Watching the recent Presidential debate got me thinking again about outsized boasting and grandiose claims.

In the context of commercial transactions, the law recognizes that there are certain statements that ought not to be considered representations of fact and cannot give rise to legal liability if the statements turn out not to be true. It has been held that “[a] statement is considered puffery if the claim is extremely unlikely to induce consumer reliance.” Newcal Industries, Inc. v. Ikon Office Solution (9th Cir. 2008) 513 F.3d 1038, 1053. A statement that is “quantifiable” and “makes a claim as to the specific or absolute characteristics of a product”  may be an actionable statement of fact. Id. This is to be juxtaposed with a “general, subjective claim about a product,” which is “non-actionable puffery.”  Id. For example, labeling a product “premium” is mere puffery because it has “no concrete, discernable [sic] meaning.” Viggiano v. Hansen Natural Corporation (C.D. Cal. 2013) 944 F.Supp.2d 877, 894.

Thus, the more generic the praise—think superlatives like “great,” “tremendous,” and the “best ever”—the less likely a statement will be regarded as an actionable statement of fact. And all the easier to avoid being called to account for real, substantive and quantifiable representations.

As pointed out by the Newcal Industries court, the reason puffery should not give rise to liability is that no one ought to be so gullible as to rely on these types of assertions. I wonder what lesson we might draw from this well established legal premise that might apply to the upcoming Presidential election? Food for thought. Or perhaps I should say, the best advice ever …

And the award for Best Allegation in a Lawsuit goes to … Overton v. Anheuser-Busch Company.

Fed up with television beer commercials, the plaintiff in Overton sued the defendant Anheuser-Busch Company under Michigan’s Pricing and Advertising Act for allegedly making “untrue, deceptive and/or misleading” representations in Bud Light television advertisements.

The plaintiff, Richard Overton, alleged that in the beer giant’s television advertisements Bud Light is “shown to be the source of fantasies coming to life, involving otherwise impossible manifestations of scenic tropical settings, beautiful women and men engaged in endless and unrestricted merriment.”

Despite the award winning allegation, the trial court threw out the suit and the summary disposition was upheld by the Michigan Court of Appeals. Overton v. Anheuser-Busch Company (Mich. App. 1994) 205 Mich.App. 259. The case illustrates an important concept of advertising law.

The appellate court observed, first, that such a “grandiose suggestion” that Bud Light is the source of fantasies coming to life was mere “puffery.” Overton v. Anheuser-Busch Company, supra, 205 Mich.App. at 261. A concept long recognized under the law, “puffery” amounts to a salesman’s praise of his or her own wares, involving matters of estimate or judgment upon which reasonable people may differ.

Second, the Court reasoned that to the extent Bud Light television ads failed to disclose the undisputed dangers of alcohol consumption, that omission was not actionable because “the dangers inherent in alcohol consumption are well known to the public.” Id. at 261-262. Because these dangers are well known to the general public, the Court concluded that nothing material was concealed. Id.

There are limits, however. The California Supreme Court has observed that “[a]lthough courts traditionally have allowed the seller considerable latitude in which to ‘puff’ the virtues of his product, ‘(t)he tendency of the modern cases is to construe liberally in favor of the buyer language used by the seller in making affirmations respecting the quality of his goods and to enlarge the responsibility of the seller to construe every affirmation by him to be a warranty when such construction is at all reasonable.’” Hauter v. Zogarts (1975) 14 Cal.3d 104, 112, fn. 7, quoting Lane v. C. A. Swanson & Sons (1955) 130 Cal.App.2d 210, 214.

Unless you are confident that your advertisements are mere puffery such that no reasonable person could construe anything contained in the advertisements as amounting to affirmative representations about the quality of your goods or services—or you are making beer commercials depicting the endless merriment of beachgoers consuming your product—consider consulting with your intellectual property counsel.