There is one phrase that sums up yesterday’s panel on puffery—puffery is f@#$*&% great. The panel started with a bang by jumping right into a video advertisement for dollar shave club where CEO and panelist Michael Dubin informed the audience (and the world) that the blades offered by dollar shave club are not good, they are f@#$*&% great. The panel’s energy did not stop there.
The panel dove into the age old question, how does one know when an advertising claim is a puff? The starting place for the panel was of course black letter law. The moderator, Terri Seligman from Frankfurt Kurnit, provided a thorough black letter definition of puffery—“an obviously exaggerated representation that is not objectively provable and that ordinary consumers would not rely upon in making a purchasing decision.” The panel consisting of Michael Dubin (Dollar Shave Club); Gabriel Martinez (Clorox); Ndidi Oriji (NBC Universal); and Laura Brett (NAD), then gave their impressions of puffery—especially, what they consider NOT to be puffery.
The first observation is that if the claim is measurable, it is not puffery. The panel discussed by way of example a Tropicana NAD case where Tropicana claimed its juice was the “World’s Best” juice. The NAD found that this claim was puffery because “World’s Best” was a general, non-measurable claim of superiority. The panel compared this case to a case where the claim “World’s Best Cat Litter” (Kent Nutrition Group, Inc. #5301) was challenged by Clorox. The NAD held that the claim was not puffery because it was made in conjunction with multiple measurable claims (ends odor the best, lasts longer, clumps the best, as green as green can be, you can eat the cat litter because it’s made from corn, among others). These claims are measurable and took what could have been a puffing claim and turned it into something that requires substantiation. The panel also noted that the advertiser did not participate in the NAD process in the Kent case and the advertiser was referred to the FTC, resulting in a closing letter.
A question from the audience asked Gabriel Martinez (Clorox) why he challenged such an outlandish advertisement, implying that consumers would not likely rely on the claims made. Mr. Martinez stated that, while the advertising for the cat litter was way over-the-top, it warranted a challenge at NAD because the cat litter started gaining shelf space at major retailers based on these false claims at Clorox’s expense.
Ndidi Oiji was asked if claims such as “World’s Best” raise any red flags with the networks. Ms. Oiji said that, “while they do not raise any red flags per se, claims such as “World’s Best” are not a “hall pass” to puffery. Like the Kent case, there are a number of ways that “best” can be used to describe a measureable attribute of a product/service.”
After discussing the puffing examples, the panel moved on to actionable denigration in advertising—undue belittling in comparative advertising. When evaluating denigrating advertising, NBC Universal looks for the snark or meanness in the way the competitor is described. Ndidi Oiji clarified that, “it is not to say that NBC has a prohibition on advertising that could be considered mean.” NAD also agreed that it does not prohibit “mean advertising.” However, the consensus of the panel was that overly snarky advertising claims may receive a closer look by the clearance and NAD panels than other types of claims.
The panel then shifted gears, giving the room a live case study of how/why these types of puffing ads are created. Michael Dubin took the group through a live history of his company, telling the room that his concept was born out of frustration with a common problem, purchasing razors. Michael chose to use humor not only as a device in his advertising but as a cornerstone in his brand universe. Puffing was a big piece of this strategy. While Michael did not have advertising counsel when drafting his original advertising four years ago in his parent’s basement, he focused on creatively getting his message across without “pissing off the big boys too much.” While he made a number of comparisons to the big players in the razor market, he was careful not to falsely denigrate them. The NAD agreed with Michael when his advertising was challenged, concluding that advertisers can make a comparison, can make it funny and exaggerated as long as it is a true comparison.
It should be noted that in the NAD challenge, Dollar Shave Club agreed to change some of its advertising before the NAD opinion was finalized. Gabriel Martinez posed the question to Laura Brett whether changing some of the advertising claims at issue had any effect on the overall decision. Ms. Brett responded that, “while the claims that were voluntarily changed will be treated differently in the opinion than if the company had not changed them, the analysis of the remaining claims does not change, and the fact that some advertising has been changed does not affect the NAD’s analysis. The claim at issue will be evaluated based on the substantiation for that particular claim.”
For more on puffery check out Humor and a Heartthrob Cannot Save the Day at NAD in False Disparagement Case