Your Global Favorite advertising law blog, All About Advertising Law, hereby decrees Puffery Week. Also known as the Best Week in Blogging History Bar None. It will be even bigger than Sharknado. Not to thump our chest (or make actual claims we would need to substantiate) but we are pretty sure this puffery series will change life as you know it. In anticipation of Puffery Week, NAD came out with two recent cases on the puff defense with very different results. We will brilliantly address them in separate blogs this week. We predict you will be wildly entertained but sadly no more elucidated on how to find a puff v. a claim than when we started. Puffs are the quintessential art not science of the advertising legal world and it is far more difficult to know it when you see it.
The first case in our series involves Tropicana in a challenge by V8. Tropicana came out with a refrigerated combination fruit and vegetable juice. The ads proclaimed it was "the world's best fruit and vegetable juice." Standing alone, we can probably all agree that is puffery. But V8 pointed out that everything is contextual. This statement is made in an ad set in a grocery store showing competitive, non-refrigerated juices crashing to the floor. The voiceover says "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." V8 said it was directly comparative and falsely denigrating. Tropicana said it was a puff and just pointing customers to look for the new product in the chilled section of the market not the shelf stable juice aisle. V8 submitted survey evidence which showed many people took away a superiority message. Tropicana said the survey was meaningless because it did not include a control to account for preexisting beliefs about the merits of refrigerated v. non-refrigerated juices.
In this case NAD sided with Tropicana. It agreed the lack of a control in the survey did not weed out potential noise based on preexisting beliefs. It then said that the competitive juices crashing to the floor was "fanciful" and takes the viewer from the interior aisle to the cooler section. NAD distinguished cases where competitive products are "thrown away or otherwise denigrated." NAD also noted there was no reference to any product attribute other than that it was refrigerated. And NAD used the discarded survey to note that very few respondents said the ad conveyed a message about V8. So NAD concluded Tropicana was merely puffing and upheld the ad as is in its entirety.
It may well be that Tropicana has learned puffing lessons over the years. A decade ago, in an earlier NAD case, Tropicana's message that its Pure Premium orange juice has "everything [customers like] about fresh squeezed orange juice" conveyed an unsubstantiated claim that the juice was materially the same as fresh squeezed juice. But this time around Tropicana gets to drink the sweet nectar of a complete NAD win.
Stay tuned tomorrow for a wake up call of a different kind for a coffee advertiser.