ADventures in Law

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It’s the age-old banter between the marketing team and the marketing lawyers. The song and dance goes something like this:

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Lawyer: Where is your support for this claim that we are the best and better in this ad?

Lawyer: I know you are but what am I? [and other honorable attempts to divert and reframe the claim]

The age-old wisdom is that “best” alone conveys corporate pride and bravado but not a claim. (This even sometimes applies to “better.”) But when “best” is used accompanied by product attributes and/or in a comparative context, it is a claim that requires substantiation. If only it were so simple. The ad lawyer’s safe house is always “it depends on the context,” but in defining the line between a puff and a claim, this is really the tipping point.&nbsp;

NAD recently decided a <a href="https://bbbprograms.org/media-center/dd/old-trapper-beef-jerky">new puffery case</a>. Old Trapper called its offering on pack “clearly the best beef jerky.”

<a href="https://www.amazon.com/Old-Trapper-Peppered-Naturally-Family-Size/dp/B08WRDS4Q7" target="_blank" rel="noreferrer noopener">See the packaging for yourself.</a>

Link Snacks, maker of Jack’s Links, had a cow and took its beef to NAD. (I think Jack’s may have some anger issues generally as its <a href="https://www.jacklinks.com/">mascot</a> appears to be a sasquatch with a flamethrower.)

It said this promise was on packaging and, since the Old Trapper jerky sat on shelves next to the Jack’s Links, it was inherently comparative. NAD wasn’t biting on that one. (Old Trapper also said its reference to “clearly” was just a clever reference to its clear packaging. NAD didn’t need this, but it’s a best practice to always have a plan B or something to say as a defense if your plan of puff defense falls short.)

But in other website copy, Old Trapper boasted, “[W]e use only the highest quality ingredients in every Old Trapper flavor. That’s just one reason why Old Trapper is #ClearlyTheBest.” The claim appeared over images of peppers, brown sugar, and beef strips. NAD did not find this to convey a comparative superiority message.&nbsp;However, NAD found a monadic claim that Old Trapper’s used high-quality ingredients. Since no proof was submitted to back up this claim, NAD recommended it be discontinued.

But here is where it gets interesting. In a 15-second spot, Old Trapper asserted “Old Trapper is Clearly the Best Beef Jerky. Clearly More. Clearly Nothing to Hide. Clearly Fresh. Clearly the Best.” NAD found this to be a puff,&nbsp;noting no competitors were mentioned and no attributes touted “other than a single reference to ‘clearly fresh.’” Holy cow! Holy smokes! Or holy smoked cow! Here is where I scratch my head. And I don’t think even a protein rush from chewing on some dried beef can clear this up.&nbsp;NAD seems to have drawn a distinction that tying the “best” to ingredients created a claim. It is not clear why asserting the jerky was the best in the same breath as “fresh” and “more” and “nothing to hide” didn’t also turn “clearly the best beef jerky” into a claim.&nbsp;I am not saying NAD got this one wrong. But I am saying it’s complicated. And reasonable minds may differ. This may be why marketers and their lawyers will likely continue to debate puffery till the cows come home.&nbsp;

So what to do? The next time you get into a tussle with your marketers over what is and is not a puff, first get rid of the easy ones. “Best” by itself with some other adjectives will almost certainly be a puff. “Best” with reference to ingredients or other product attributes will almost certainly be a claim. “Best” in a context without referencing product attributes or showing or referring to competitive products will likely be a puff. But it is not always black and white (yup, a Holstein reference). It seems NAD is willing to give a bit more leeway on what can be said along with “best” to still stay on the puffing line, so it may be worth taking the bull by the horns and taking a little risk. But chew on this — you may well end up at NAD so consider whether such promises are worth the cost of defense. And have some support ready to go in case “best” is found to be a claim. Having puffery as your only defense is a risky proposition, and one on which we would not generally bet the farm.&nbsp;

A Meaty New Puffery Case to Sink Your Teeth Into