We’re all familiar with “puffing,” even if not by name. Puffing (a/k/a “puffery”) consists of advertising that states, in general terms, that a product or service is superior to others. Classic product slogans come to mind:
• BMW: “the ultimate driving machine,”
• Maxwell House: “good to the last drop,” or
• Miller Lite: “Taste great, less filling.”
It isn’t that BMW is promising that you’ll never find a better car, or that Maxwell House is saying that its coffee is the absolute best; U.S. law considers the statements to be sufficiently general in nature as not to be misleading.
Some Product Statements Are Misleading
There is sometimes a fine line, however, between puffing – which is allowed under U.S. law, and making misleading statements in advertising, which is not. A recent decision by the Federal Trade Commission (FTC) concerning a California product is illustrative.
In a mid-December, 2016 decision, the FTC held that promotional advertising by California Naturel, Inc., promoting its “all natural” sunscreen on the company website as containing “only the purest, most luxurious and effective ingredients found in nature” violated Section 5 and 12 of the FTC Act. During the litigation, California Naturel admitted that eight percent of its sunscreen formula was dimethicone, a synthetic ingredient.
Clarifying Statements in Web Site’s Fine Print Often Isn’t Enough
The company contended that it included an accurate product ingredient list and a disclaimer on its web site, but the FTC said it wasn’t enough. It noted that the use of dimethicone was buried within a list of more than 30 ingredients and that nothing identified the ingredient as synthetic. The FTC was particularly critical of the disclaimer, since it was positioned at the bottom of the web site. The FTC contrasted that inconspicuous location with the prevalence of “all natural” advertising elsewhere on the site and on the product packaging. In light of the situation, the FTC issued an order prohibiting California Naturel from advertising its products as “all natural” and making other similar misrepresentations.
“Catch-22” in Advertising
There is somewhat of a Catch-22 when it comes to advertising. Under the “80/20 rule,” 80 percent of all advertising is ignored. So, if your advertising campaign is too bland, no one will pay any attention to it. On the other hand, if you stretch things too far, you could be in trouble with a claim of misrepresentation. How can your advertising land within the 20 percent that is effective and yet still be safe (or relatively so) from FTC and other claims? One smart response: Don’t just engage a marketing team; make sure that team engages with knowledgeable, skilled business law attorneys at CKB Vienna.
CKB Vienna LLP: A Full-Service Consulting and Law Firm
The law firm of CKB VIENNA LLP provides legal and business consultation to nearly every type of business, from large to small – even to startups and nonprofits. We have helped with advertising and branding issues and have assisted numbers of businesses in trademark research, due diligence research, and in various forms of associated litigation. And while the firm is skilled in all forms of litigation, our attorneys also provide preventive training and offer guidance designed to avoid the consequence and cost of litigation. At CKB VIENNA, we use our collective resources to address every detail of your complex business and legal demands. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.