Skip to content

What is Puffery and When Will It Get You Into Trouble?

If you believe ‘puffery‘ is an antiquated and cartoonish sounding word, you are not alone.

Legal dictionaries (as standard dictionaries rarely include it) define puffery as a “representation, statement or conduct that clearly over exaggerates the attributes or characteristics of some product or service.” Consumers are not intended to construe the statement as an offer or rely upon it.

Puffery is important in both marketing and contract law. In marketing law, whether conduct is likely to mislead and deceive consumers, and in contract law, whether it constitutes an enforceable promise. Even outside of formal contractual negotiations, if puffery amounts to a representation that the other party detrimentally relies on, there may be a steep price to pay for what otherwise would be mere sales talk.

So what does constitute puffery? In the late 1800s, Carbolic Smokeball Company offered £100 to whoever caught a cold after using the smokeball as instructed for two weeks. We are undoubtedly familiar with this marketing technique used in advertisements from exercise equipment to organic fish tablets. Carbolic Smokeball Company attempted to renege on what the Court held to be an “enforceable contractual promise” and not just a mere puff. Even when hyperbolic statements sound as if no reasonable person would take them seriously, it is an important lesson to take real care when advertising products.

More recently, Red Bull in late 2014 agreed to pay out a class of customers to the tune of over US$13 million dollars. Why? You may recall their energy drink which claimed for over a decade to give consumers wings. Apparently, it did not! Disgruntled and misled claimants were eligible to bring a claim if they had bought one or more Red Bull products in the previous ten years. Yes, your maths is correct – that is millions of people. Each claimant received either a US$10 voucher or US$15 worth of Red Bull products.

The plaintiff argued in this case that the use of the phrase, “Red Bull gives you wings,” suggested that a user would experience some measurable improvement in athletic performance – a claim unsupported by any scientific evidence.

So, the moral of the story? If you want to puff in your advertising, send it to an experienced LegalVision lawyer to look over. We can assist you with advertising and marketing compliance, and help you navigate the sugary waters you may find yourself in if you promote your product through exaggerated claims!

Register for our free webinars

ACCC Merger Reforms: Key Takeaways for Executives and Legal Counsel

Online
Understand how the ACCC’s merger reforms impact your legal strategy. Register for our free webinar.
Register Now

Ask an Employment Lawyer: Contracts, Performance and Navigating Dismissals

Online
Ask an employment lawyer your contract, performance and dismissal questions in our free webinar. Register today.
Register Now

Stop Chasing Unpaid Invoices: Payment Terms That Actually Work

Online
Stop chasing late payments with stronger terms and protections. Register for our free webinar.
Register Now

Managing Psychosocial Risks: Employer and Legal Counsel Responsibilities

Online
Protect your business by managing workplace psychosocial risks. Register for our free webinar.
Register Now
See more webinars >
Catherine Logan

Catherine Logan

Read all articles by Catherine

About LegalVision

LegalVision is an innovative commercial law firm that provides businesses with affordable, unlimited and ongoing legal assistance through our membership. We operate in Australia, the United Kingdom and New Zealand.

Learn more

We’re an award-winning law firm

  • Award

    2025 Future of Legal Services Innovation Finalist - Legal Innovation Awards

  • Award

    2025 Employer of Choice - Australasian Lawyer

  • Award

    2024 Law Company of the Year Finalist - The Lawyer Awards

  • Award

    2024 Law Firm of the Year Finalist - Modern Law Private Client Awards

  • Award

    2022 Law Firm of the Year - Australasian Law Awards