Reading time: 3 minutes

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!


Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards