Types of Claims

• Pages: 43-99

43

CHAPTER III

TYPES OF CLAIMS

A. Comparative Claims

1. Superiority Claims

a. Types of superiority claims

Superiority claims are subject to the same general rules of

substantiation as other advertising claims. An advertiser must have a

“reasonable basi s” for express or reasonably implied advertising claims

before such claims are published. One exception to this substantiation

rule is if the superiority statement is phrased as puffery, which is defined

as “exaggerated advertising, blustering, and boasting upon which no

reasonable buyer would rely,” or “a general claim of superiority over a

comparative product that is so vague, it will be understood as a mere

expression of opinion.”1

When making a superiority claim, the advertised attribute must be

consumer-relevant or useful. Television network guidelines state that the

networks will not accept claims that emphasize a point of difference that

consumers will not perceive, or is not relevant to them. National

Advertising Division (NAD) decisions also state this concept.

To substantiate technical claims regarding product attributes, the data

relied on must fairly and accurately reflect the claim. Claims regarding

product efficacy, preference or other tangible attributes must be

supported by “competent and reliable” testing, performed on the actual

product attribute or feature. Any testing should adhere to normal

instructions and reflect actual conditions of consumer use.

Any disclaimers used to qualify superiority claims must be

understandable, prominent, legible, and placed in reasonable proximity

to the qualified claim. Disclaimers may not be used to contradict the

1. 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR

COMPETITION , § 27:38 (4th ed. 1997) [hereinafter MCCARTHY].

44

Advertising Claim Substantiation Handbook

main claim or create such a large exception that the main claim is

essentially untrue.2

There are a number of specific superiority claims that have special

rules for substantiation, all of which are discussed in this chapter. These

are the following:

• Overall, unqualified superiority claims, such as “Brand A is the

best.”

• Dangling superiority claims, such as “Brand A is better.”

• Claims of superiority over the leading brand, such as “Brand A is

better than the leading brands.”

• Overall comparative superiority claims, such as “Brand A is a

better choice than Brand B.”

• Comparative superiority claims as to a specific attribute, such as

“Brand A has a better picture than Brand B.”

• Exclusivity claims, such as “Only Brand A offers this feature.”

• Establishment claims, such as “Tests prove that Brand A

outperforms Brand B.”

• Consumer preference claims, such as “People prefer Brand A,

two to one, over Brand B.”

• Self-improvement claims, such as “New and improved.”

All of these claims are discussed in more detail and specific case law

examples are provided below.

b. Objective Claims Versus Puffery

Any discussion of superiority claims requires an analysis of the

distinction between objective superiority claims requiring substantiation,

and defensible puffery for which no substantiation is required. Broad

superiority claims such as “best” can, depending on context, sometimes

be defended as puffery, while in other instances such claims are viewed

as objective claims requiring substantiation.

Puffery is generally defined as vague or exaggerated statements of

opinion, statements that are incapable of being measured or proven, or

statements upon which no reasonable person would rely. Puffery

2. FTC, Advertising FAQ’s: A Guide for Small Business (2001) available at

http://business.ftc.gov/sites/default/files/pdf/bus35-advertising-faq s-guide

-small-business.pdf.

Types of Claims

45

statements are typically subjective and often hyperbolic. Because

statements that are puffery do not require substantiation, they are non-

actionable. Examples of the types of statements which have been held to

constitute puffery include: “The Ultimate Driving Machine” for BMW

automobiles; “Nobody Does It like We Do” for McDonald’s; and “Better

Ingredients, Better Pizza” for Papa Johns.3

There are two primary categories of puffery. Puffing can be

“exaggerated advertising, blustering, and boasting upon which no

reasonable buyer would rely,” or it can “consist of a general claim of

superiority over a comparative product that is so vague, it will be

understood as a mere expression of opinion.”4

The determination of whether a statement is puffery turns on the

facts of the particular case. As such, it is sometimes difficult to

distinguish advertising claims requiring substantiation from puffery

statements. This is particularly true when statements in ads could be

interpreted as indicating either superiority of the advertised products and

services or merely exaggerated hyperbolic statements. Much depends

upon the context in which the statement is made.

Courts and the Federal Trade Commission (FTC) have often used the

following criteria to distinguish puffery statements in advertisements

from objective claims: (1) whether the statement is general or specific,

with general statements more likely to be puffery; (2) whether the

statement is capable of measurement, with non-measurable statements

more likely to be considered puffery; and (3) whether the statement is

couched in terms of fact or opinion, with opinion statements more likely

to be considered puffery.5

The NAD generally applies similar standards. For example in Saint-

Gobain Abrasives,6 the NAD set forth certain factors to determine

whether a claim is puffery or an objective, measurable claim, including:

(1) whether the representations concern general matters that cannot be

3. Pizza Hut, Inc. v. Papa John’s Int’l, 227 F.3d 489, 495 (5th Cir. 2000).

4. See MCCARTHY, supra note 1, § 27:38.

5. See, e.g., Wilmington Chem., 69 F.T.C. 828, 865 (1966) (defining puffery

to mean an expression of opinion not made as a representation of fact);

see also FTC Policy Statement on Decep tion appended to Cliffdale

Assocs., 103 F.T.C. 110, 174 (1984) (“The Commission generally will

not pursue cases invo lving obviously e xaggerated or p uffing

representations, i.e., those that the ordinary consumers do not take

seriously.”).

6. Report #4113, NAD/CARU Case Reports (Oct. 2003).