Clearing advertising claims seems like an easy process. All you have to do is look at the claims made in an advertisement and make sure they are true. However, in practice, this is not as easy as it looks. It often involves reviewing consumer studies, technical data and sometimes even constructing scientific tests.
The first step is to review the advertisement in question and determine what it says; what it literally says and what consumers will understand it to mean. All reasonable meanings of the advertisement must be determined from the vantage point of a reasonable person who is in the expected audience of the advertisement.
Very often the truth of a statement depends on its interpretation; and determining the meanings of statements in the commercial is not always easy. Very often a simple statement will have a different meaning in the context of the visuals of the commercial. In some cases a consumer study is required to see the exact meaning.
Once the meaning or meanings are determined, statements must be separated into claims and puffing. Whether a statement is a claim or is puffing depends on whether it is measurable. A claim is not measurable if it is a statement of opinion. For example, a testimonial that the product is "great" cannot be measured in any meaningful way and is mere puffery. Puffery is an exaggerated advertising, bluster and boasting upon which no reasonable buyer would rely and is not actionable. For example,"Less is More," was held to be non-actionable puffery because it was not measurable and precisely the type of generalized boasting upon which no reasonable buyer would rely.1 However, the court also held that the claim "50% Less Mowing," was a specific and measurable claim of superiority and was therefore not puffery. In order to prove a statement is merely puffery, the advertiser must show that there is no method by which the statement can be proven. In some instances, if a claim cannot be proven to be true because the scientific community can only agree to a hypothesis which supports the claim, it may be necessary to determine if competitors are using the same claim. Competitors' use of the claim may go towards reducing the likelihood that the claim is deceptive.
Finally, careful consideration must be given to the overall message of the advertisement. Even if all of the claims in an advertisement are literally true, their combined effect in the advertisement can be deceptive, and thus not permitted. In a case where a comparison between the advertiser's and competitor's products was truthful and accurate, the overall impression was held misleading because of a lack of disclosure of the material differences between the products that was relevant to the comparison.2'
Once a thorough review of the advertisement is done to determine all of the claims, the next step is to determine the level of substantiation required, if any. The aim in clearing the advertisement is to prove all claims, or to show that a claim is incapable of proof.
Very often when the meaning of a claim has been determined, its truth or falsity can be easily measured. For example, a claim to be the best selling antacid can be easily measured by reference to standard reports on sales such as Nielsen. However, there are many claims that cannot be so easily measured.
Claims such as consumer preferences –Preferred 2 to 1 by consumers in taste tests–requires consumer testing to verify. A consumer study must meet certain rigorous standards and should be done by someone familiar with forensic surveys because the usual commercial studies often do not meet the required standards.
Other claims may require scientific testing. A claim could be that a motor oil keeps your car running longer than its competitors' oils. Obviously, this can be proven by getting fleets of cars and using the advertised oil in one set of cars and other competitors' oils in other sets of cars and waiting 10 to 20 years to see which lasts longer. By the time such a test is completed the product is long out of date. Scientific tests have been developed to estimate how well an oil will work in preserving a car,without waiting the 10 to 20 years. If these tests are generally accepted or if they can be scientifically shown to test whether an oil will preserve a car then they can be used to support the advertisement.
Clearing advertising claims is a two-step process. First, determine what the claims are and then ensure they are true. But as simple as this sounds, in practice it is a complicated process.
1 Stover Sod Farms v. Stover Seed Co., 108 F. 3d 1134 (9th Cir. 1996).
2 Sprint PCS, NAD Case Reports #3356 (6/1/99).