• by Karl Greenberg , September 26, 2006

When is puffery a good word? In advertising. As attorney Terri Seligman of Loeb & Loeb LLP explained it, puffery is exaggeration, using humor, that isn't legally actionable. This means it isn't likely to delude consumers, or play fast and loose with the truth to the detriment of a competitive brand.

The point is critical because as both Seligman and Andrea Levine, director of NAD, said, it is getting harder to discern between puffery and denigration, false claims, and other forms of misleading advertising.

The panel discussion, "When Puffery Crosses the Line," part of Monday's NAD Annual Conference, drew distinctions with speakers offering numerous ads as examples.

One ad for the Mercedes GL wagon was clearly exaggerated in its portrayal of the vehicle's virtues. All of it was deemed fine by NAD, except for a sequence in which the vehicle was side-impacted by another vehicle. The Mercedes came through without a scratch, but the other vehicle was totaled.

Levine said the press lambasted NAD for its decision to take Mercedes to task for the ad when the sequence was clearly meant as humor. "Safety is not funny, and it isn't puffery to overstate the safety of a vehicle," said Levine during the panel.

Pomegranate juice company Pom received the same treatment for its "Cheat Death" campaign, with NAD deeming the language more than puffery, since the company appeared to assert that Pom juice prevents cancer.

Elizabeth Forminard, an attorney with Pfizer, offered the broad description of puffery as either chest-beating, such as Lee Iacocca's famous assertion, "If you can find a better car, buy it!" or the mere expression of opinion, such as Conagra's pitch for Hunt's ketchup: "Better tomatoes make better ketchup."

Forminard also echoed a sentiment two other panel members had expressed: While the NAD has very stringent criteria by which it judges whether an ad is puffery or not, its efforts are diminished by the circuit courts, "which aren't even trying to be consistent," she said.