We have all seen those catchy adds; A person is in a predicament. That person drinks a can of red-bull. The predicament is solved (usually by a means that involves some sort of flying activity). But if you drink a can of red bull, and you don’t grow wings, can you sue the manufacturer for false advertising or is it mere puffery?

The simple answer is ‘no, probably not’. Similarly, you probably can’t sue your local coffee shop when the cup of brew they hand over doesn’t transpire to be “the best coffee in town”, nor are you likely to win a claim against Lynx for failing to turn you into a hot-chick magnet (sorry, fellas).

Why?

The simple reason why, is puffery. Cute sounding word, actual legal meaning.

What is puffery?

Puffery is a claim made by a vendor or service provider in marketing or advertising that does not represent a genuine offer or promise about the product or service in question but instead expresses exaggerated subjective rather than objective views which no reasonable person would take literally.

The key phrase here is ‘reasonable person’ which is the test applied at law in determining if a statement made is a genuine representation/ promise or, instead, puffery. Sure, there is probably someone out there who was very disappointed not to sprout a pair of wings after polishing off their can, but no reasonable person would actually think this would occur.

What is the difference between puffery and false advertising?

Of course, there are many cases that walk the line of puffery or genuine representation, and where a finding of puffery is not made, the vendor, manufacturer or service provider can find themselves liable for breaches of the Australian Consumer Law and, in particular, the misleading and deceptive conduct provisions.

Indeed, a class action was bought against Red Bull by a number of somewhat opportunistic American claimants, claiming while the adds in question did not convey a message to a reasonable person of actual wing-sproutage, they did convey to the reasonable person that the ingredients would provide a “superior energy source”. Sadly, that case settled before going to court, and thus no judicial determination was handed down.

In Australia, Reebok was handed with a judicial ‘kick’, so to speak, after the ACCC found their statements regarding the health benefits of a certain pair of runners amounted to actual representations, as opposed to just puffery, and this breached the Australian Consumer Law.

What does this mean for retailers?

Retailers and manufacturers should be considerate of how an audience is going to interpret their advertising. At all times you should avoid making false statments or misleading representations about your products, and if you’re using puffery, make sure it’s obvious that it’s not intended to be taken literally!

Conclusion

The line between puffery and misleading or deceptive conduct can be a fine one, so if you are a retailer or manufacturer and are considering an advertising campaign that some people may take literally, its best to get legal advice before any publication occurs. If you have questions about the legalities of your advertising campaigns or slogans, give LegalVision a call on 1300 544 755 and one of our business lawyers will be able to advise you.

Emma Jervis

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