Wendel Rosen's Intellectual Property Blog

The Greatest Blog Post Ever Conceived by a Human Being

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.

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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

 

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