ADventures in Law

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It’s the dog days of summer, and the Go-Go’s said it best with “<a href="https://youtu.be/2RHTiXvELNg" target="_blank" rel="noreferrer noopener">Vacation All I Ever Wanted</a>.” Well, NAD gave us the next best thing with not one but two recent cases about every advertiser’s favorite topic – puffery! Today we will tackle one related to sunscreen and later this week one about sports tape.

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The general rule for when a “world’s best” claim is a puff: When used as a stand-alone statement, it is usually puffery. But when accompanied by attributes, it becomes a comparative claim requiring substantiation. But what if the language itself includes an attribute? Is that always a claim, or is there some wiggle room? NAD recently found the <a href="https://bbbprograms.org/media/newsroom/decisions/vacation" target="_blank" rel="noreferrer noopener">latter</a>.

Vacation Sunscreen proclaims itself to be <a href="https://vacation.inc/" target="_blank" rel="noreferrer noopener">the World’s Best-Smelling Sunscreen</a>. A competitor thought this was so cut and dried that they challenged the statement in the 20-day SWIFT track, asserting it was a claim and banking on the fact that Vacation had not done a consumer scent preference test. Even though “best-smelling” is an attribute that can be tested in ways detailed by the <a href="https://store.astm.org/e1958-22.html" target="_blank" rel="noreferrer noopener">ASTM</a>, NAD didn’t stop there. It said that which scents are the “best” is inherently subjective. Further, the broad “world’s best” made the statement so broad and exaggerated, NAD didn’t think consumers would expect there to be broad substantiation. So, the lesson here is to look carefully at what you are asserting to be the “world’s best.” World’s best cancer cure, probably a claim. When claiming your products give a world’s best feeling, like scent or sound, there may be room to take the position that this is a puff, at least when used as a tagline.

NAD went on to look at the context in which the claim was used. Just like a vacation hotel room can be wonderful or terrible depending on the view, so can the interpretation of a “world’s best” promise be influenced by its surroundings. As a stand-alone statement, NAD found it a puff. On the Vacation website, however, it was presented in quotes along with statements of consumer sentiment – that is, had 4.8/5-star reviews and the total number of reviews it had received. In that context, NAD found the statement could convey a claim that the sentiment is substantiated by the reviews. NAD recommended those ads be modified to avoid conveying that implied claim. Presumably, this would mean putting space between the “world’s best” language and the reference to consumer reviews.

Here’s hoping our readers are all consuming this blog on a beautiful beach. And if so, remember to apply your SPF regardless of the scent!

Puff or Claim? NAD Shines Light on Where To Draw That Line