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!

Catherine Logan

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