Domino’s Pizza has revived the old “puffery in advertising” issue, but unlike “truth in advertising,” anti-puffery campaigns are likely to have more public relations and buzz impact than legal impact.
On its Facebook page, Domino’s defines puffery as “a statement classified as an opinion, not fact, that no reasonable person would take literally.”
That generally agrees with what Kent Wolfe and Christopher Ferland of the University of Georgia wrote in a marketing and economic development paper on puffery. They said: “Puffery is a term used in the advertising industry to describe the hype and exaggeration that may be present in advertising to grab consumers’ attention.
Not Deceptive Advertising
“Puffery is generally not considered deceptive advertising because it is so exaggerated that no reasonable consumer would take the claims literally,” they added.
In its evaluations of puffery cases, the Food and Drug Administration leans heavily on whether “reasonable consumers” will take the claims literally.
The FDA view is that if reasonable people do not take the puffery literally, there is no harm in it. Chalk it up to simple exaggeration and free speech. Besides, FDA would be overwhelmed by the sheer volume of puffery it would have to evaluate. That means companies can, and do, claim their products and services are better, best and safest without having to prove the claims because they are subjective.
Advertising Rule of Thumb
Wolfe and Ferland provided this “rule of thumb” for advertisers:
- Do not “make objective claims that cannot be scientifically substantiated.”
- “Subjective claims are generally considered to be puffery and cannot be substantiated.”
Domino’s launched its puffery campaign by challenging Papa John’s “Better Ingredients, Better Pizza” slogan. On its Facebook page, it asked readers to “Help Domino’s Help You Stop the Puffery.”
“People you know on social networking sites are using puffery, just like Papa John’s and their slogan ‘Better Ingredients, Better Pizza.’ And it must be called out,” Domino’s added.
In an accompanying video, a spokesman attired as a chef says that when the Papa John’s slogan was challenged in a federal court at New Orleans, Papa John’s defended its slogan as “puffery.”
The video chef then turns to an attorney and asks: “What’s puffery?”
Exaggerated Statement Based on Opinion
The attorney reads a definition from a book: “Puffery. An exaggerated statement based on opinion, not facts.”
He makes no mention of the other part of the generally accepted legal definition, which says puffery would not be taken literally by any reasonable person.
The video chef then refers to a recent pizza taste test and says “our pizza tastes better and that’s not puffery, that’s proven.”
Domino’s says its website is “a puffery-free zone,” which is an invitation to closer scrutiny.
