Couch potatoes everywhere have had a chuckle over DirecTV’s campaign featuring Rob Lowe’s “cool” and creepy/awkward/dorky personas, wherein “cool Rob” is equated to DirecTV, and the less fortunate Rob is equated to a competitor. One example of the campaign is a commercial wherein beloved heartthrob, well dressed, successful Rob Lowe states that he has DirecTV, while mullet-donning, varsity-jacket-clad, “peaked in high school” Rob Lowe states that he has cable. The commercial, through these personas, make statements promoting DirecTV over cable, with the conclusion from normal Rob: “Don’t’ be like this me, get rid of cable and upgrade to DirecTV.”
Unfortunately for DirecTV, cable companies thought it no laughing matter that some of the commercials made claims that DirecTV users experience “99% signal reliability” and “The industry’s best picture quality and sound,” and that DirecTV is ranked “#1 in customer satisfaction over all cable TV providers,” “ranked higher than cable for over 10 years,” and “the undisputed leader in sports which means you can watch all the games you want to.” Even the “don’t be like this me” tagline raised the ire of cable company Comcast, who, according to the National Advertising Division (NAD), part of the Council of Better Business Bureaus, challenged these claims.
The NAD concluded that while some claims were defensible, the claims relating to customer satisfaction, quality, and DirecTV’s ranking were not. DirecTV agreed to pull the ads, but appeal the decision, and the NAD stated that DirecTV maintains that the advertisements are “so outlandish and exaggerated” that no reasonable consumer would believe that the statements being made are comparative or need to be substantiated.
So who is right? Are the commercials so zany that consumers would be inclined to dismiss the comments made by [insert negative adjective] Rob Lowe, or do legitimate concerns of deceptive or false advertising exist?
The answer is not so clear. Adjudication of false advertising claims, when brought by competitors in private litigation under Section 43(a) of the Lanham Act or when challenged through the FTC or the NAD, tends to be a highly fact specific endeavor, but when claims are made against statements that appear to be literally or implicitly false or lack reliable substantiation, problems tend to ensue.
When it comes to Lanham Act claims of false advertising, the general rule is for the allegedly aggrieved party to prove falsity, and not just a lack of pre-existing substantiation. In other words, the competitor must prove that the statements are false or misleading, not simply that they were made without pre-advertisement scientific/market tests to support them. The grey area tends to comes in when deciding whether claims, though literally true, are likely to mislead and confuse consumers, versus statements that amount to mere “puffery.” Puffery has been defined by courts as “an exaggeration or overstatement expressed in broad, vague, and commendatory language,” Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3d Cir. 1993), and is not actionable because the audience for the statement cannot be deceived; it is quintessential “sales talk. . . to be discounted as such by the buyer.” Id., 987 F.2d at 945. As the Second Circuit has stated in another case (that happened to involve DirecTV), “The ‘puffing’ rule amounts to a seller's privilege to lie his head off, so long as he says nothing specific.” Time Warner Cable, Inc. v. DirecTV, Inc., 497 F. 3d 144, 159 (2d Cir. 2007) (citing Pennzoil Co., 987 F.2d at 945.))
Here, arguments can easily be made on both sides, particularly with regard to the softer statements (like the challenged tagline). But if this dispute shows us anything, it is that using humor as a conduit does not necessarily convert an otherwise actionable claim to non-actionable puffery. Substantiating advertising claims before they are published is best practice, and whenever comparative advertising is used, companies should tread with even greater caution, clear all statements with their legal advisers, and give serious thought as to whether the benefit of making the statement outweighs the risk of a false advertising claim brought by a competitor.