Nobody Does it Better: Puffery or False Advertising?

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Tropicana_FarmstandA recent decision resolving an advertising dispute between Campbell Soup Company and Tropicana Products, Inc. reinforced what we know to be empirically true:  simply claiming to be the “best” really doesn’t mean much at all.  See Tropicana Products, Inc., NAD Case Report No. 5610 (July 3, 2013). It’s usually just hyperbole, a tool in the advertiser’s toolbox too vague to put a competitor at a disadvantage, mere “puffery” in legal parlance.

The Challenged Commercial

The dispute, which was brought by Campbell before the National Advertising Division, a self-regulatory program administered by the Better Business Bureau, challenged a commercial stating

“If you want the world’s best fruit and vegetable juice, look in the cooler.  Introducing Tropicana Farmstand, a deliciously chilled fruit and vegetable juice.”

Contemporaneous with the claim of being the “world’s best” juice, the commercial features an entire section of non-refrigerated juices falling to the floor only to reveal Tropicana’s refrigerated juices in the background. 

Campbell’s Arguments

Campbell argued that the commercial as a whole suggested that all non-refrigerated fruit and vegetable juices (including Campbell’s V8 V-Fusion) were inferior.  To bolster that theory, Campbell pointed to statements by Tropicana’s Chief Marketing Officer emphasizing the positive connotations of refrigeration—“high quality,” “premium” and “freshness.”  Campbell also pointed to the results of a consumer perception survey it commissioned that concluded a majority of respondents believed that the commercial conveyed the superiority of Tropicana Farmstand juices over other juices.

NAD’s Decision

NAD conceded that calling a product the “best” could be actionable depending on the context.  But Campbell failed to make the case that the commercial conveyed the message that Tropicana was better than all other fruit juices.  NAD rejected Campbell’s survey evidence as unreliable.  The survey evidence also failed to link any specific attribute of Tropicana’s juice to the juice’s supposed superiority.  Moreover, according to NAD, the collapse of the shelves holding non-refrigerated juices did not denigrate those products, but was a humorous ploy to show where the consumer could find Tropicana’s juice.  Tropicana’s Chief Marketing Officer’s statements were irrelevant since they were not part of the commercial, and even if they were somehow relevant, at most they showed only that Tropicana’s commercial played on preconceptions about the freshness and premium quality of chilled juices, not on any factual claim that chilled juices are necessarily fresher or healthier.

 Conclusion

Advertisers and challengers can both learn from this decision.  In general, merely designating one’s product the “best” is puffery, not false advertising.  To be actionable, something else in the context of the advertisement must convey the message that the product is objectively superior.  From an advertising perspective, advertisers should steer clear of emphasizing specific product attributes (such as efficacy or health impact) and asserting the product is the “best” in the same advertisement.  From a challenger’s point of view, a challenge is unlikely to prevail if an advertisement simply invokes preconceptions about a product’s attributes.  Survey evidence or a review of the advertisement as a whole must establish that the advertisement conveys an unsubstantiated claim of superiority based on a particular product attribute.

 

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Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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