Back in April, I blogged about an NAD decision finding that Goya’s statement "La Pasta Favorita De Puerto Rico” did not constitute puffery but was, instead, an objective claim of consumer preference, for which Goya had no proof. Goya appealed the decision and now NARB has weighed in. (NARB Panel #255.) Like NAD, the NARB panel found that the statement is not puffery, but a claim requiring substantiation. NARB rejected Goya’s argument that the statement is too ambiguous to be studied through a consumer perception study. The panel noted that “[w]hile different consumers may have different reasons for viewing a pasta as their favorite, they can certainly understand what they are being asked if they are surveyed on that issue.”

Notably, the NARB panel, like NAD, rejected Goya’s argument that the 8th Circuit’s decision in American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004), in which the Court held that the slogan “America’s Favorite Pasta” was puffery and declined to rely on survey evidence to show otherwise, should be controlling or at least highly persuasive. The panel noted that “…NAD and NARB, in exercising their industry self-regulatory responsibilities, are not bound by the decision of the Eighth Circuit” and that, regardless, puffery determinations are highly contextual and fact-specific.

The fact that the courts and NAD are not always aligned in their approach to false advertising issues – particularly puffery determinations -- can be vexing, particularly if you’re counseling on a new slogan that’s similar to ones previously analyzed by courts or NAD. The courts do seem to approach superlative statements with a more jaundiced eye than NAD; I much more often see in judicial opinions some variant on “no one could possibly believe this is true!”

Does that mean you should just rely on judicial opinions, and ignore what NAD has said? I’d give a resounding no to that. First, if for no other reason, if you wind up in a dispute with a competitor over an advertising issue, odds are much greater that you’ll be fighting at NAD rather than in court. Pursuing a false advertising issue under the Lanham Act, while sometimes necessary, is rarely the first obvious choice, given the expense and trouble of litigation. Also, let’s face it, NAD deals with advertising issues day in and day out – meaning, a lot more often than the courts. Therefore, NAD's “feel” for what’s a claim and what’s puffery and how a consumer is likely to perceive an advertiser’s statement or slogan is highly developed and based on dozens of other examples.

So, my advice? Keep abreast of both judicial and self-regulatory opinions and definitely don’t discount the latter. Also, always put on your consumer hat (on top of your lawyer hat) when thinking about new advertising slogans and statements.