A mere puff

Do

you puff ? No, I am not asking you to incriminate yourself by admitting that you smoke an illicit substance. My question is do you try to impress others by exaggerating your attributes and accomplishments and playing down your imperfections? If you do, you might be said to engage in puffery.

In the murky world of advertising, companies advertising their products are permitted to engage in puffery without attracting any legal liability.

A company that sells a product will advertise it to induce the public to buy it by pointing out its good features and its utility value. No advert will state that the product is useless or dangerous. But what happens if false claims are made about a product in an advertisement? The aggrieved customer can sue the company for the harm he or she suffered by relying on the false assertions that amount to a fraudulent or negligent representation or an express or implied warranty. H.G. Wells’ joke that “Advertising is legalised lying” overstates the position as some advertising lies are not legal.

On the other hand, the customer cannot sue if the assertions amount to puffery which is exaggerated or overstated praise of a product, or stretching the truth about it in a harmless fashion. It is a promotional statement expressing a subjective view that no reasonable person would take literally or seriously and rely on. Some examples of puffs are these, “the best fried chicken in the world”; “the warmest sweater for you”; “the best razor a man can get”; “less wrinkles in minutes”. Then there is the L'Oréal advert started out with an egotistical woman saying that she uses the beauty product because she is worth it but this later got toned down to saying a woman would use the product because she is worth it. If you drink a Coca Cola you cannot reasonably expect that your life will instantaneously improve because the advert tells you that things go better with Coke. Bill Crosby was correct when he quipped, “The very first law in advertising is to avoid the concrete promise and cultivate the delightfully vague”.

The term puffery emanates from the 1892 English Court of Appeal case Carlill v Carbolic Smoke Ball Company. The company had so much confidence that its Smoke Balls would prevent influenza that it advertised that it would pay £100 if the product failed to work. Carhill got influenza after using the product but the company refused to pay him the promised £100. Part of the company’s defence was that such a statement was a “mere puff ” and not meant to be taken seriously. The court acknowledged that certain statements made by advertisers would not give rise to liability. Specifically, the court implied that the cure promises that appeared in the Carbolic Smoke Ball advertisement were not serious enough to attract legal liability. The court held nonetheless held that the company was obliged to pay the customer the promised £100. It had made an offer to the customer which the customer had accepted and it was bound to honour this promise. (I am informed by a colleague that at the time of this case there had been a flu epidemic in England.)

This case shows that the borderline between puffery and actionable lies is not easy to draw. Politicians standing for office make claims about their abilities that range between puffery and downright lies. According to Kenneth Koch: “Certainly, it seems true enough that there’s a good deal of irony in the world… I mean, if you live in a world full of politicians and advertising, there’s obviously a lot of deception”.

One of the most distressing examples of blatant misrepresentation that had disastrous consequences was the thalidomide scandal. A German pharmaceutical company and was put this drug on the market in 1957. It was first prescribed as a sedative and tranquiliser. It was proclaimed a “wonder drug” for insomnia, coughs, colds and headaches. It was also found to have an inhibitory effect on nausea from morning sickness. The company advertised its product as being safe even during pregnancy,” as its developers “could not find a dose high enough to kill a rat”. By 1960, thalidomide was sold all around the world, with sales nearly matching those of aspirin. Tragically many mothers who took the drug gave birth to children with missing or deformed limbs and a high percentage of the children died. The parents faced a long and arduous legal battle to obtain compensation for the harm caused as a result of relying on the false safety claims.

Far less serious is an American case in 2011. A company called New Balance introduced a new line of shoes it claimed had features that “[used] hidden balance board technology that encourages muscle activation in the glutes, quads, hamstrings and calves, which in turn burns calories”. This would help you lose weight. Multiple studies cited in the resulting class-action lawsuit indicated that the shoes didn't provide any additional health benefits compared to walking shoes, and might actually lead to injury. The case was not good PR for New Balance. Anyone who purchased a pair of the shoes was entitled to a $100 refund, and New Balance eventually paid out more than $2.3 million.

You could not reasonably expect to develop wings when you drink Red Bull. However, in a 2014 lawsuit against the beverage company its claim that the product improved concentration and reaction speeds was disputed. Red Bull eventually settled for a $13 million payment but said: “Red Bull settled the lawsuit to avoid the cost and distraction of litigation. However, Red Bull maintains that its marketing and labelling have always been truthful and accurate, and denies any and all wrongdoing or liability.”

Enough of all that serious stuff. This is one of my favourites:

Some wives have gone even further and offered to sell their husbands online. Teresa an American lady posted this advert on Facebook. “I have a 33-year-old husband that is no longer needed due to getting on my nerves! I don't want no money he is FREE. He is house-trained and toilet-trained. First to collect!” (Americans appear to lack knowledge about grammar.)

Teresa, a hospital supervisor, decided to put her husband, Rob, up for sale after he repeatedly annoyed her with an aggravating video. Teresa has misophonia which means she hates specific sounds such as that of people eating loudly. Rob who had found a video of a person crunching really loudly kept it playing in front of Teresa who went upstairs and according to Rob, put him up for sale.

But the prank backfired when pictures of her darkhaired husband caught the eye of 300 Facebook users, with many expressing an interest in ' purchasing' him much to the amusement of her 33-yearold husband who even went on to reply, “Brilliant, do I get my tea cooked too?”

Others women responded that they had tried to sell their husbands online. One said: ' I've tried giving mine away for free too, but no one wanted him.” One user even asked if he came with a 30-day return policy if he proved to be unsatisfactory.

Unfortunately, according to Rob, no one came to collect him even after a week.