It seems like we (and the NAD) can’t get enough of “best.” In a recent case, the National Advertising Division (NAD) ruled that the advertiser, Mahindra USA, Inc., could not claim its products were superior without reasonable evidence.
Deere & Company, Inc. challenged Mahindra’s tractor advertisements as unsubstantiated superiority claims. Mahindra’s ads included “Best” claims such as: best-selling, best value, best warranty, best performance, “toughest tractors,” and superior engine oil. Additionally, Mahindra advertised consumer testimonials that expressed disappointment in the quality of John Deere tractors compared to Mahindra tractors.
Of course, context is king and “Best” advertisements can either be substantive claims, or considered mere “puffery.” (See here for a discussion on NAD and “best” claims). For some of the challenges in this case, Mahindra conceded its ads were substantive claims and argued that they were factually supported. For instance, Mahindra argued its best-selling claims were based on unbiased data. NAD agreed that a reasonable basis existed for the claims (although additional disclosures were necessary). For the majority of the challenged advertisements, however, Mahindra argued its statements were puffery. NAD rejected this defense in all but one instance and recommended discontinuation of the ads.
So when is a commercial message puffery? The inquiry revolves around the measurability of the advertisements. NAD explained, “[i]f the superlative is used in a way that suggests it is measurably better than its competitor, it is not puffery but a claim requiring substantiation.” Puffery can be found when “vague and fanciful” superlatives are used, rather than references to specific attributes suggesting product superiority in a recognizable way. Of course, determining if ads qualify as puffery is a murky endeavor. Thus, NAD considers both the words and contexts of the claims.
NAD determined Mahindra’s “Best Warranty” advertisements were substantive claims, not puffery, because warranties can be “objectively measured based on superiority in the warranty attributes valued by consumers.” In another ad, Mahindra’s website headline stated, “The Best vs. The Rest,” followed by the text: “[s]ee why our performance is superior. Take a look at how Mahindra stacks up against the competition…” Clicking through the webpage led to additional content on Mahindra’s product attributes such as lift capacity and fuel efficiency. NAD determined that this was also not puffery, because it invited consumers to compare Mahindra’s tractors to its competitors’ tractors “with measurable attributes in mind.” Even the engine oil ad claiming “Superior Protection With Our Branded Oil” was considered a claim requiring substantiation because “one reasonable takeaway is that ‘superior’ is being used in the comparative sense.”
The only successful puffery defense involved the taglines: “Toughest Tractors on Earth” and “Toughest Utility Vehicles on Earth.” NAD reasoned that, in the context of tractors, toughness is not quantifiable because it cannot be tied to a measurable attribute. However, NAD noted that toughness can be measurable in other contexts such as claiming superiority in glue adhesiveness, citing a 2006 decision in which “The Toughest Glue on Planet Earth” was a substantive claim.
While that may have been the best part of the decision, NAD also went on to address a challenge to the use of consumer testimonials. For consumer testimonials, the general rule is that advertisers may not make claims through testimonials that cannot be substantiated if made directly by the advertiser. However, some testimonial statements are considered expressions of opinions, rather than substantive claims. This is what Mahindra tried to argue here.
Testimonials are considered individual expressions of opinions that do not need substantiation when they lack a broader message about product superiority compared to similar products in the market. For instance, NAD approved the testimonial of one consumer’s general experience, “[Mahindra] dealer answered all my questions and helped me find the machine that really fits our needs and our lifestyle.” Other testimonials, although comparative in nature, were still acceptable as sufficiently vague expressions of personal satisfaction. For instance, permissible testimonials included “Mahindra gave me more for my money,” and “I chose Mahindra because it’s the best tractor in its class period.”
However, NAD recommended that several of Mahindra’s testimonials be discontinued as unsubstantiated claims, including every testimonial that mentioned John Deere directly: (1) “I’ve had a 45-horse John Deere and there is no comparison. The Mahindra has the torque you need to lift the loader;” (2) “[w]e bought a John Deere mower four years ago and it’s falling apart, but Mahindra has stayed a workhorse;” and (3) “John Deere acted like they were doing me a favor.” An advertiser may lawfully disparage a competitor, but only if the claims are “truthful, not misleading and narrowly drawn.” Here, NAD determined that Mahindra failed to provide evidence of superior lift performance, durability, and customer relations necessary to justify these claims.
The Mahindra decision is an important reminder that companies should be cautious in claiming superiority in measurable product characteristics without providing supporting evidence. To create advertisements that qualify as puffery, an advertiser should stick to three rules of thumb: (1) use hyperbolic language, (2) do not mention competitors, and (3) avoid highlighting specific elements of a product. To publish testimonials as mere opinions, advertisers should again refrain from naming competitors and specific product attributes, and choose statements that focus on a consumers’ positive experiences.