"Favorite" Advertising Treated Differently by Courts and NAD
By: RICHARD J. WEGENER
July 2004
8th Circuit Claims "Favorite" is Puffery; NAD Requires Substantiation
The first question in any advertising review is whether the advertising makes an objectively provable factual claim about the product which requires substantiation, or is the claim simply regarded as "puffery" and not subject to substantiation?
Different legal standards at the courts and the industry’s self-regulatory body, the National Advertising Division (NAD) of the Better Business Bureau (BBB), raise the frustration level for marketers, while reminding lawyers of the key role that forum selection can play.
The Importance of “Puffery”
Claims classified as “puffery” ordinarily cannot be challenged as false advertising under federal law. The burden is on the challenger to prove that a claim is more than puffery. The result may depend upon the claim’s impact on its target audience. For example, a car dealer’s claim that it was the “number one seller of Cadillacs” was deemed capable of meaning that the dealer was the largest volume seller of Cadillacs and, as such, subject to substantiation.
“America’s Favorite Pasta” - Fact or Puffery?
This summer, the 8th Circuit concluded the claim "America's Favorite Pasta" is puffery as a matter of law. American Italian Pasta Company v. New World Pasta Company, 371 F.3d 387 (8th Cir. 2004).
Reasoning that “favorite” means “markedly popular especially over extended periods of time,” and “popular” means “well liked or admired by a particular group or circle;” “America’s Favorite” meant the pasta had to be well liked or admired over time – a claim that was neither quantifiable nor objectively provable.
The challenger offered survey evidence that equated “America’s Favorite” with the “number one brand.” However, the court wasn’t buying the challenger’s evidence. “To allow a consumer survey to determine a claim’s benchmark would subject any advertisement or promotional statement to numerous variables, often unpredictable, and would introduce even more uncertainty into the marketplace.”
NAD Expects "Favorite" Claims to be Supported With Competent Evidence
The court’s decision is at odds with NAD decisions considering “America’s Favorite” claims. In a long string of decisions, the NAD expects advertisers to support an "America's Favorite" claim with competent evidence, such as sales information or consumer surveys. The NAD’s preference for a different result simply introduces more uncertainty into the market place.
Conclusion
Supporting an “America’s Favorite” claim, if required to do so, may be an expensive proposition that can be avoided - at least in federal court. Unlike the NAD, courts considering a "favorite" claim are more inclined to take a lenient view and characterize the claim as "mere puffery.” It’s time for the NAD to re-examine its position on both public policy and legal grounds.
The NAD appears to take an over-restrictive approach by demanding an advertiser prove that it is “favored” to its competitors. Since this is the aim of most advertising today, taken to its logical conclusion, this would mean that no advertising could be published without in advance compiling evidence supporting the advertiser's express or implied favoritism over all competitors.
From a legal perspective, the NAD should heed applicable judicial authority when reviewing advertising challenges. When it comes to advertising law there is no need for “two Americas;” one living in accordance with applicable judicial decisions, one pledging allegiance to the NAD’s contrary interpretation.