DeceptionLegal test

Puffery

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

Puffery is exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)

A claim stops being puffery once it is specific and measurable, or once it can be shown to be literally true or false. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)

Key legal rules

Calling a claim puffery protects it only if the claim really is vague, boastful, or subjective, and these are the main rules the Commission and the courts apply:

  1. Exaggerated claims or “puffery” are not deceptive if the claims would not be taken seriously by a reasonable consumer. Source: CFPB, Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) Examination Procedures (Sept. 2023)
  2. The Commission generally will not bring advertising cases based on subjective claims (taste, feel, appearance, smell) or on correctly stated opinion claims if consumers understand the source and limitations of the opinion, but claims phrased as opinions are actionable if they are not honestly held, if they misrepresent the holder's qualifications or the basis of the opinion, or if the recipient reasonably interprets them as implied statements of fact. Source: FTC Policy Statement on Deception, appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)
  3. Some exaggerated claims may be taken seriously by consumers and are actionable, so exaggeration alone does not make a claim puffery. Source: FTC Policy Statement on Deception, appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)
  4. A hyperbolic representation can contain at least a kernel of dangerously misleading matter. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963)
  5. Specific and measurable claims, and claims that may be literally true or false, are not puffery and may be the subject of deceptive advertising claims. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)
  6. If a statement is falsifiable, it is a statement of fact, not opinion. Source: FTC v. Congleton (Pure Green Coffee), Order Granting Summary Judgment
  7. Claims about a product's attributes, performance, or efficacy are objective claims rather than sales puffery, because such claims can be objectively verified. Source: Initial Decision Filed by Chief Administrative Law Judge, D. Michael Chappell [Public Record Version], n.5
  8. When an advertiser places otherwise general assertions into a concrete factual setting, the advertiser creates representations that are either true or false, not mere puffery. Source: FTC v. National Urological Group, Inc., Order (June 4, 2008)
  9. Puffery inside an ad does not shield the concrete, factual claims in the same ad, because the ad is judged by the claims it conveys as a whole. Source: FTC v. National Urological Group, Inc., Order (June 4, 2008)
  10. Statements made for the purpose of deceiving prospective purchasers, particularly statements designed to consummate a sale by fright, cannot properly be characterized as mere puffing. Source: Steelco Stainless Steel, Inc. v. FTC, 187 F.2d 693 (7th Cir. 1951)
  11. A puffing argument goes to how consumers would interpret the ad, which is the second step of the deception analysis, rather than to materiality. Source: In re Novartis Corp., Opinion of the Commission
  12. Puffing does not include affirmative product claims for which either the Commission or the consumer would expect documentation. Source: FTC Policy Statement on Deception n.42 (quoting In re Pfizer Inc., 81 F.T.C. 23, 64 (1972))

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

Whether a practice is deceptive depends on how a reasonable member of the target audience would interpret the representation. Source: CFPB, Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) Examination Procedures (Sept. 2023) The CFPB's guidance applies that rule to boasting: exaggerated claims or puffery are not deceptive if a reasonable consumer would not take them seriously. Source: CFPB, Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) Examination Procedures (Sept. 2023) The Commission set a related limit in the Swim-Ezy matter, saying that a representation does not become false and deceptive merely because an insignificant and unrepresentative segment of its audience will unreasonably misunderstand it. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963) In the Ipana toothpaste matter the Commission called a reference to beautifying the smile mere puffery, unlikely because of its generality and wide variety of meaning to deceive anyone factually. Source: In re Bristol-Myers Co., Syllabus It reasoned the same way in the Rapid Shave matter, where it said sellers may call their products “good” or “wonderful” only because those adjectives are not designed to affect the intellect but are an accepted technique for urging the prospect to close the deal. Source: In re Colgate-Palmolive Co., Opinion of the Commission In its opinion on the California Dental Association's advertising restrictions, the Commission wrote that some general claims of quality are so recognizably statements of personal opinion that no substantiation is possible or expected by reasonable consumers, and that such “mere puffing” deceives no one and has never been subject to regulation. Source: In re California Dental Association, Opinion of the Commission For the same reason, puffing does not include affirmative product claims for which either the Commission or the consumer would expect documentation. Source: FTC Policy Statement on Deception n.42 (quoting In re Pfizer Inc., 81 F.T.C. 23, 64 (1972))

The doctrine is narrow because its premise fails whenever consumers might believe the claim. The Commission's policy statement says some exaggerated claims may be taken seriously by consumers and are actionable. Source: FTC Policy Statement on Deception, appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984) Reliance also follows specifics. The BurnLounge court observed that consumer reliance will be induced by specific rather than general assertions, which is why a concrete number or testable result takes a statement out of puffery. Source: FTC v. BurnLounge, Statement of Decision And because an ad is read as a whole, a puffery phrase cannot launder the concrete claims around it. Otherwise an advertiser could bury a falsifiable promise inside boasting and escape review of the promise. Source: FTC v. National Urological Group, Inc., Order (June 4, 2008)

Enforcement examples

FTC v. National Urological Group, Inc. (weight-loss and erectile-dysfunction supplements)

FTC v. National Urological Group, Inc., Order (June 4, 2008)

The FTC alleged that the defendants' Thermalean advertisements claimed the product was clinically proven to enable users to lose 19% of their total body weight, lose 20-35% of abdominal fat, reduce their overall fat by 40-70%, decrease their stored fat by 300%, and increase their metabolic rate by 76.9%. Source: Order - June 4, 2008 The defendants answered that most of the challenged advertising was non-actionable puffery. Source: FTC v. National Urological Group, Inc., Order (June 4, 2008)

Outcome. The court agreed the ads were full of boasting, finding them indisputably riddled with puffery. Source: FTC v. National Urological Group, Inc., Order (June 4, 2008) It still held that the puffery could not shield the concrete claims mixed in with it, and concluded that puffery was not a justifiable defense and that the FTC was entitled to summary judgment. Source: FTC v. National Urological Group, Inc., Order (June 4, 2008)

In re Bristol-Myers Co. (Ipana toothpaste)

In re Bristol-Myers Co., Findings as to the Facts

Bristol-Myers advertised Ipana with several kinds of claims. Some said the modern American diet consists of such soft, well cooked, nonfibrous foods that the gums do not get needed exercise and stimulation, and that massage with Ipana would supply it. Source: In re Bristol-Myers Co., Findings as to the Facts Others said the toothpaste would beautify the smile and brighten and whiten the teeth. Source: In re Bristol-Myers Co., Findings as to the Facts

Outcome. The Commission sorted the claims. It treated “beautify the smile” as puffery because of its generality and widely variant meanings, but it found the diet and gum-massage representations false and deceptive. Source: In re Bristol-Myers Co., Findings as to the Facts

In re Colgate-Palmolive Co. (Rapid Shave shaving cream)

In re Colgate-Palmolive Co., Opinion of the Commission

Television commercials for Palmolive Rapid Shave showed a razor cleanly shaving what was presented as sandpaper, but no sandpaper was used. The “sandpaper” was a plexiglass mock-up to which sand had been applied. Source: In re Colgate-Palmolive Co., Initial Decision

Outcome. The hearing examiner concluded that the matter was little or nothing more than a case of harmless exaggeration or puffing. Source: In re Colgate-Palmolive Co., Initial Decision The Commission reversed course, saying the examiner had erred because he asked the wrong questions. Source: In re Colgate-Palmolive Co., Opinion of the Commission It explained that puffing does not embrace misstatements of material fact, Source: In re Colgate-Palmolive Co., Opinion of the Commission and that the claim that the cream shaves sandpaper, together with the on-screen demonstration offered as proof, were factual representations that were untrue. Source: In re Colgate-Palmolive Co., Opinion of the Commission

In re Kirchner (Swim-Ezy inflatable swimming aid)

In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963)

Magazine ads for the Swim-Ezy device said that it made anyone unsinkable and that poor swimmers would look like champions. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963) The ads also represented that the device would instantly enable non-swimmers to swim. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963)

Outcome. The hearing examiner dismissed the “instantly enables non-swimmers to swim” charge as merely harmless puffing, and complaint counsel did not appeal that ruling. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963) The Commission refused to treat the claim that the device would let the wearer perform like a champion swimmer as harmless puffing, because that hyperbole contained at least a kernel of dangerously misleading matter. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963) It did, however, eliminate the prohibition on the claim that the device lets the wearer “look like” a champion, which it called, standing alone, harmless puffing. Source: In re Heinz W. Kirchner, Docket 8538, Opinion of the Commission (Nov. 7, 1963)

FTC v. Pukke (Sanctuary Belize lot sales)

Memorandum Opinion (Sanctuary Belize)

Salespeople for the Belize development told prospective buyers that lot values would greatly appreciate. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize) They also typically claimed that there was a “robust” resale market for the lots. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)

Outcome. The court called the speculative appreciation talk puffery pure and simple and held it did not violate the FTC Act. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize) The “robust” resale claim came out the other way, and the court found that the FTC proved a violation. Source: FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)

FTC v. BurnLounge (business-opportunity income claims)

FTC v. BurnLounge, Statement of Decision

The court found that the defendants, including BurnLounge through its CEO and its authorized agents at company presentations, made misleading representations about the actual and potential income of participants. Source: FTC v. BurnLounge, Statement of Decision

Outcome. The defendants argued the income statements were mere puffery or immaterial, and the court rejected that argument. Source: FTC v. BurnLounge, Statement of Decision The statements were not vague or suggestive pronouncements but specific references to actual or purportedly actual income amounts. Source: FTC v. BurnLounge, Statement of Decision

FTC v. Response (real estate training programs)

Memorandum Decision and Order Granting In Part and Denying In Part Both Plaintiffs' Motion For Summary Judgment and Defendants' Motion for Summary Judgment

Response told buyers that its one-on-one coaching programs required an interview, were selective, and had limited spots. Source: Memorandum Decision and Order Granting In Part and Denying In Part Both Plaintiffs' Motion For Summary Judgment and Defendants' Motion for Summary Judgment Speakers at its events also described the software it gave students as unique, though Response had licensed it from third parties who sold their own products to the public. Source: Memorandum Decision and Order Granting In Part and Denying In Part Both Plaintiffs' Motion For Summary Judgment and Defendants' Motion for Summary Judgment

Outcome. The court rejected the puffery argument for the selectivity statements, which were not simple boasts or vague exaggerations but presented characteristics that were measurable and capable of being literally true or false. Source: Memorandum Decision and Order Granting In Part and Denying In Part Both Plaintiffs' Motion For Summary Judgment and Defendants' Motion for Summary Judgment It reached the same conclusion about the statement that nothing like Response's software exists, Source: Memorandum Decision and Order Granting In Part and Denying In Part Both Plaintiffs' Motion For Summary Judgment and Defendants' Motion for Summary Judgment and held that the plaintiffs had shown, as a matter of law, that Response made false or misleading representations about its coaching programs. Source: Memorandum Decision and Order Granting In Part and Denying In Part Both Plaintiffs' Motion For Summary Judgment and Defendants' Motion for Summary Judgment

FTC v. National Urological Group, Inc. (contempt of weight-loss injunction)

FTC v. National Urological Group, Inc., Contempt Order

After the 2008 judgment, the court entered permanent injunctions on December 16, 2008. Source: FTC v. National Urological Group, Inc., Contempt Order Those orders barred weight-loss claims about rapid or substantial weight and fat loss, or effects on metabolism, appetite, or fat, unless substantiated with competent and reliable scientific evidence. Source: FTC v. National Urological Group, Inc., Contempt Order Hi-Tech's new ads backed away from its earlier concrete claims but kept advertising the products with more puffing. Source: FTC v. National Urological Group, Inc., Contempt Order

Outcome. The court held the defendants could not escape contempt by making the exact representations the injunction prohibited merely because those representations would ordinarily be considered puffery. Source: FTC v. National Urological Group, Inc., Contempt Order Puffery may be a defense to a direct violation of the FTC Act, but it is not necessarily a defense to contempt of a broad injunctive provision. Source: FTC v. National Urological Group, Inc., Contempt Order

In re Better Living, Inc. (aluminum storm windows and doors)

In re Better Living, Inc., Initial Decision

Better Living's advertising for its storm windows and doors included the line “WORLD’S LOWEST PRICES.” Source: In re Better Living, Inc., Initial Decision Its advertising agent admitted that he had no real factual basis for the claim, and in answer to a leading question called it “Typical puffing, yes.” Source: In re Better Living, Inc., Initial Decision The same advertising called the windows “First Prize Winners for Beauty.” Source: In re Better Living, Inc., Initial Decision The agent admitted that the storm windows were never awarded a beauty prize of any kind. Source: In re Better Living, Inc., Initial Decision

Outcome. The hearing examiner held that “the world’s lowest price” could not properly be called puffing, because it is a statement of an objective actuality whose truth or falsity can be ascertained with factual precision. Source: In re Better Living, Inc., Initial Decision The charge still failed on that claim, because no evidence showed a lower price anywhere and the examiner concluded the burden of proof had not been sustained. Source: In re Better Living, Inc., Initial Decision The “Beauty Prize” claim fared differently: the examiner rejected the puffing defense because readers who did not know the products had never been entered in a beauty contest could reasonably accept the statement at face value. Source: In re Better Living, Inc., Initial Decision The examiner's order directed the respondents to stop representing that any of the products had been awarded prizes in competitive contests unless that was in fact true. Source: In re Better Living, Inc., Initial Decision

FTC v. Trudeau (diet book infomercials)

FTC v. Trudeau, contempt proceeding

Trudeau's infomercials told viewers over and over that his diet was “easy.” Source: FTC v. Trudeau, contempt proceeding The diet in his book required fifteen colonics in a 30-day period and a 500-calorie daily limit that needed a physician's supervision, and the infomercials never mentioned either. Source: FTC v. Trudeau, contempt proceeding Because Trudeau was already under a court order not to misrepresent the “content” of his books, the matter was a contempt proceeding. Source: FTC v. Trudeau, contempt proceeding

Outcome. Trudeau argued that his statements that the protocol was “easy” were mere puffing and expression of opinion. Source: FTC v. Trudeau, contempt proceeding The court answered that he was “simply incorrect that the term ‘easy’ is always puffing or the expression of an opinion,” and certainly incorrect as to its use in that case. Source: FTC v. Trudeau, contempt proceeding It pointed out that the Supreme Court had found “easily” and “without tortuous diet” to be more than puffing where the ads misrepresented the actual program dieters had to follow. Source: FTC v. Trudeau, contempt proceeding

FTC v. LOA (LED replacement lamps)

FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment

LOA's packaging claimed that particular LED lamps “replace” a certain wattage bulb, such as “replaces 20 watts” or “replaces 45 watts.” Source: FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment The FTC also challenged lifetime claims for the lamps, including that they would last 30,000 hours and that “You’ll never change your light bulbs again.” Source: FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment

Outcome. The court treated the wattage statement as a specific, numerical claim that is actionable, not a statement of opinion about appearance. Source: FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment It granted the FTC summary judgment on that claim. Source: FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment For “You’ll never change your light bulbs again,” the result was the opposite: the phrase sat beside the specific hours claim and, in the court's words, had the ring of hyperbole on which consumers are not likely to rely. Source: FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment Because the FTC offered no evidence challenging that point, LOA won summary judgment on that statement. Source: FTC v. LOA, Order Granting, in Part, the Federal Trade Commission’s Motion for Summary Judgment

In re POM Wonderful LLC (pomegranate juice)

In re POM Wonderful LLC and Roll Global LLC, Initial Decision

One POM Juice ad said that consuming POM Juice “can reduce plaque by up to 30%!” and that clogged arteries lead to heart trouble. Source: In re POM Wonderful LLC and Roll Global LLC, Initial Decision Another, headlined “Cheat Death,” showed the bottle with a noose around its neck. Source: In re POM Wonderful LLC and Roll Global LLC, Initial Decision Its brief text said POM Juice “can help prevent” heart disease. Source: In re POM Wonderful LLC and Roll Global LLC, Initial Decision

Outcome. The initial decision found that a significant minority of reasonable consumers would read the “Floss your arteries” ad to say that drinking eight ounces of POM Juice daily treats, prevents, or reduces the risk of heart disease. Source: In re POM Wonderful LLC and Roll Global LLC, Initial Decision The headline was clearly an exaggeration that would not be taken literally, but it still contributed to that net impression. Source: In re POM Wonderful LLC and Roll Global LLC, Initial Decision The humor and noose imagery in “Cheat Death” likewise did not materially detract from the ad's overall net impression. Source: In re POM Wonderful LLC and Roll Global LLC, Initial Decision

Exposure

A claim that fails the puffery test is an ordinary deceptive claim, and the remedy in the Rapid Shave matter was a Commission order to cease and desist. The order ran against respondents Colgate-Palmolive Company and Ted Bates & Company, Inc. Source: In re Colgate-Palmolive Co., Opinion of the Commission Among other things, it barred them from misrepresenting, in any manner, directly or by implication, the quality or merits of any shaving cream. Source: In re Colgate-Palmolive Co., Opinion of the Commission

The larger exposure comes when a business relabels the same claims as puffery after an order is already in place. In the Hi-Tech matter, the court entered permanent injunction orders on December 16, 2008 enjoining the defendants from several activities related to their previous violations of the FTC Act, and the court later held the defendants in contempt. Source: FTC v. National Urological Group, Inc., Contempt Order The Commission's own account of the contempt sanctions says the court held Hi-Tech, Wheat, and Smith jointly and severally liable for compensatory sanctions of $40 million. Source: 150116nughi-techbrief, Counterstatement of the Case An endorser is exposed too, because the court found that Dr. Wright's endorsement of Fastin violated his own injunction. Source: FTC v. National Urological Group, Inc., Contempt Order

A lawyer's blessing does not cure the problem. In the same matter, Wheat had received advice that some of his advertisements were non-actionable puffery, and the court said that conclusion, which it had rejected, in no way absolved the defendants of contempt liability. Source: FTC v. National Urological Group, Inc., Contempt Order

Specific infomercial claims defended as puffery have also produced large money awards. In Direct Marketing Concepts, the First Circuit held that definite statements that coral calcium cures cancer, and that Supreme Greens cures cancer and heart disease, went far beyond puffery as a matter of law. Source: FTC v. Direct Marketing Concepts, Inc., 624 F.3d 1 (1st Cir. 2010) The Commission's appellate brief describes the district court's resulting order that the seller pay $48.2 million in monetary equitable relief. Source: FTC v. Direct Marketing Concepts, Inc., Brief of Appellee Federal Trade Commission In Trudeau, the Commission's brief reports that the court required Trudeau to pay $37.6 million, the amount of consumer injury from his deceptive infomercials, instead of disgorging his royalties. Source: FTC v. Trudeau, Brief of the FTC, Statement of the Case

FAQs

  1. 1.Memorandum Opinion. FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)See also Order - June 4, 2008. FTC v. National Urological Group, Inc., Order (June 4, 2008)See also cfpb_unfair-deceptive-abusive-acts-practices-udaaps_procedures_2023-09. CFPB, Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) Examination Procedures (Sept. 2023)
  2. 2.Memorandum Opinion. FTC v. Pukke, Memorandum Opinion (Sanctuary Belize)
  3. 3.cfpb_unfair-deceptive-abusive-acts-practices-udaaps_procedures_2023-09. CFPB, Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) Examination Procedures (Sept. 2023)

This resource is educational and is not legal advice. Reading it does not create an attorney-client relationship. Laws and rules change, and the right answer depends on the facts of your unique situation.

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