• by Karl Greenberg , October 6, 2009

"Puffery is the last refuge of scoundrels," said Edward Glynn, Jr., a partner at the Washington, D.C. law firm Venable, LLC. That sentiment, perhaps itself a bit of puffery, set the tone at Monday's aptly named "Best Puffery Panel in the Universe" at the BBB's National Advertising Division Conference in New York. Glynn and the other panelists agreed that marketers, creatives and their lawyers should not cross their collective digits and hope the world sees their humorous and exaggeration-filled ad campaign as mere puffery.

One reason is that while the world itself may be easy to define, puffery (as, say, an exaggerated, blustering or boasting statement -- often humorous -- upon which no reasonable buyer would be justified in relying; or a general claim of superiority that is an expression of opinion and would be understood as such by consumers), marketers and their lawyers are often at loggerheads when it comes down to what constitutes puffery versus real claims in ads.

Glynn said that in any case, one cannot assume that one's advertisement -- humorous or not -- will be understood by consumers, competitors, the Federal Trade Commission and others, as puff. "I know individual lawyers who at the FTC have a great sense of humor, but the institution does not have a sense of humor at all. That's not to say they don't understand what puffery is. They do, but if you get into a meeting with an attorney about your campaign and you are reduced to saying it's puffery, you are in big trouble," he says, because the FTC will have decided, at the outset, whether a campaign contains puffery or an actionable claim.

"They will see an ad and ask themselves, 'Does this ad make a claim that a normal consumer would understand to be a claim?' If the answer is yes, they have answered the puffery question." Glynn pointed out that the best-known case in the past decade was the Papa John's commercial that called out Pizza Hut. The spot showed the former president of Pizza Hut coming to a meeting of Pizza Hut franchisees wearing a Papa John shirt and telling franchisees that he switched companies because he liked Papa John's ingredients better than Pizza Hut's. That was deemed a claim, and the ad was pulled. "Keep it general. Keep it vague," said Glynn.

The Mac versus PC campaign, said Glynn, is a classic example of an ad that makes no actionable claim, since the characters are symbolic. "What if the PC guy had -- instead of saying 'I'm a PC' -- said 'I'm a Dell'? Would that specialization of comparison turn it from puffery into something more comparative? I think it would."

Mary Jane Saunders, general counsel to the Subway Franchisee Advertising Fund Trust, the marketing arm of the Subway restaurant system, said the Fund is essentially a big ad agency with ads reviewed by a panel comprising marketers, legal, PR and franchisees. "So our biggest problem is the tension between that which must be substantiated and that which creatives say is puffery," she said. "The biggest problem for me as a lawyer is that puffery is a defense; it should not be an advertising objective."

Saunders recounted the chain's battle with Domino's at the end of last year, when the latter targeted Subway with its own line of sandwiches. The ads made specific claims about the superiority of Domino's sandwiches to Subway's, but Saunders said the comparisons were flawed.

"I wrote a 'cease and desist letter.' And I got a response a week later -- but it was from our media group, who called and said, 'Mary Jane, you won't like this.'" Domino's response was a TV spot in which a putative Domino's executive holds the actual letter Saunders had written, and says that the best thing to do with such a letter is to put it in an oven, which he proceeds to do.

"We went to the networks to talk about the advertising and we went to the NAD, and this was our very first experience with an NAD proceeding. We don't litigate often, but with this ad what we were concerned about was the effect. They were claiming that consumers preferred their sandwiches to ours by a two-to-one margin. But they only tested some of our sandwiches, and they didn't test type for type. NAD agreed with us."

Saunders said Subway's approach to advertising is to make creative able to substantiate everything and avoid competitive spots. "Most consumers we survey about own ads prefer it when you focus on yourself and present it in a believable, trustworthy and respective manner."