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
COMPETITION , § 27:38 (4th ed. 1997) [hereinafter MCCARTHY].
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
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
Types of Claims
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
6. Report #4113, NAD/CARU Case Reports (Oct. 2003).

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