Puffery

Puffery (pronounced puhf-uh-ree)

(1) Undue or exaggerated praise; inflated laudation; publicity, claims in advertising, acclaim etc, that are exaggerated (also known as the “puff piece”).

(2) In common law jurisdictions (often as “mere puffery), certain claims or assertions made which, even if literally untrue or misleading, are not actionable.

(3) An act of puffing (rare except in humor).

1730–1735: The construct was puff (in the sense of “to praise with exaggeration”) + -ery.  The noun puff was from the early thirteenth century Middle English puf, puffe, puff & puf, from the Old English pyf (a short, quick blast of wind, act of puffing) which was imitative and cognate with the Middle Low German puf & pof.  It was derived from the verb which was from the Middle English puffen, from the Old English pyffan & puffian (to breathe out, blow with the mouth) and similar forms in other European languages included the Dutch puffen, the German Low German puffen, the German puffen, the Danish puffe and the Swedish puffa.  The sense of “to blow with quick, intermittent blasts” was common by the mid-fourteenth century while the meaning “pant, breathe hard and fast” emerged some decades later.  It was used of the “fluffy light pastry" from the late fourteenth century while the “small pad of a downy or flossy texture for applying powder to skin or hair” was first so described in the 1650s.

The meaning “to fill, inflate, or expand with breath or air” dates from the 1530s while the intransitive sense (in reference to small swellings & round protuberances) was noted by 1725.  The transitive figurative sense of “exalt” was known by the 1530s which shifted somewhat by the early eighteenth century into the meaning “praise with self-interest, give undue or servile praise to”, the idea by mid century focused on the figurative sense of “empty or vain boast”, this sense soon extended to mean “flattery & inflated praise”.  The derogatory use of poof for “an effeminate man; a male homosexual” was noted from the 1850s and is presumably from puff (possibly in the sense of “powder puff”, an allusion to the stereotype of their “excessive concern with maintaining a delicate appearance”)) and the extended form “poofter” was early twentieth century Australian slang, an unusual linguistic departure for a dialect which tended either to clip or add a trailing “e”, “y” or “o” sound to words.  The correct spelling for the furniture piece (A low cushioned seat with no back; a padded foot-stool) was pouf, from the French pouf & pouff (again of imitative origin) but, presumably because of confusion caused by the pronunciation, the spellings puff & poof sometimes are used.  The suffix -ery was from the Middle English -erie, from the Anglo-Norman and Old French -erie, a suffix forming abstract nouns.  The suffix first occurs in loan words from the Old French into the Middle English, but became productive in English by the sixteenth century, sometimes as a proper combination of -er with “y” (as in bakery or brewery) but also as a single suffix (such as slavery or machinery).  Puffery is a noun; the noun plural is pufferies.

Mere puffery

The origin of “puffery” in the publishing industry is thought to be the character of Mr Puff, the verbose and bogus critic in Richard Brinsley Sheridan’s (1751-1816) The Critic (1779).  Puffery was the class of “criticism” used as a tool by literary cliques (comprising groups of authors who praised each other’s works) and this excessive lauding was referred to also as a “blow up” (ie the notion of puffing into a balloon, inflating something which although becoming bigger, remains essentially “empty’).  In the jargon of publishing, a puff (or puff piece) is the equivalent of a “blurb”.

In law, the concept of “mere puffery” was created to provide a buffer between the “meaningless” sales pitch and the deceptive or misleading claims which amount to a misrepresentation.  A misrepresentation may be actionable; “mere puffery” is not.  Puffery is used to describe a claim that (1) a “reasonable person” would not take seriously or (2) is so vague or subjective that it can be neither proved nor disproved.  Those two definitions operate in conjunction because even if an assertion can be disproved, if it would be absurd for the “reasonable person” to claim they believed it, it will be held to be “mere puffery”.

Doubling down: Disappointed at losing the case based on their £100 offer, to restore public confidence, they offered £200. 

In contract law, the term “puffery” comes from one of the most celebrated cases in English jurisprudence: Carlill v Carbolic Smoke Ball Company (1892, EWCA Civ 1) before the Court of Appeal.  During the deadly influenza pandemic in the northern winter of 1889-1890, the Carbolic Smoke Ball Company it would pay £100 (equivalent to some £14,000 in 2023) to anyone who became ill with influenza after using their smoke ball in accordance with the instructions enclosed with the product.  Mrs Carlill was concerned enough by the flu to buy a ball which, following the instructions, she used thrice daily for some weeks but nevertheless, caught the flu.  Unable to persuade the company to pay her £100, Mrs Carlill brought an action, in court claiming a contract existed which the company denied.  At first instance, despite being represented by a future prime-minister, the Carbolic Smoke Ball Company lost, a verdict upheld unanimously by the Court of Appeal.  It was a landmark in the development of contract law, refining the long-established principles of (1) offer, (2) acceptance, (3) certainty of terms and (4) payment although it would be decades before the implications would begin comprehensively to be realized in legislation.  Not only did Mrs Carlill secure her £100 but she survived the pandemic, living to the age of ninety-six.  On 10 March 1942, she died after catching influenza.

So, Mrs Carlill, having used the smoke ball three times a day for almost two months before she developed influenza sued for breach of contract and the court held the offer made in the advertisement was not “mere puff” but constituted a valid offer of contract; the Smoke Ball Company’s offer was thus a misrepresentation because, in the particular circumstances detailed, a “reasonable person” would be likely to believe that they would receive £100 and thus, relying on the claim, be persuaded to purchase the product.  However, all the circumstances must be considered on a case-by-case basis and an individual’s simple reliance on a claim they sincerely believe to be true is not sufficient to for something to be held a misrepresentation.

In the famous Red Bull lawsuit in 2013, the court noted the company’s advertising slogan “Red Bull gives you wings” was “mere puffery” in that no reasonable person would believe ingesting even many cans of the stuff would mean they would “grow wings and fly” but the lawsuit claimed that implicit in the slogan was the allegedly deceptive and fraudulent suggestion that the drink was a “superior source of energy”, something not backed up by scientific evidence.   Heard in US District Court for the Southern District of New York, the class action was lodged by someone who had been drinking Red Bull for a decade-odd.  His claim was not that he expected feathers to sprout but that idea drinking Red Bull would increase performance and concentration (as advertised on the company's television, on-line and marketing campaigns) was “deceptive and fraudulent and is therefore actionable”.  The scientific basis for the action was research which found energy drinks gained their “boost” through caffeine alone, not guarana or any other ingredient, adding although there was no academic support for the claim Red Bull provides “any more benefit to a consumer than a cup of coffee, the Red Bull defendants persistently and pervasively market their product as a superior source of ‘energy’ worthy of a premium price over a cup of coffee or other sources of caffeine.”  Red Bull, while denying any wrongdoing or liability and maintaining its “marketing and labeling have always been truthful and accurate”, the company settled the lawsuit “to avoid the cost and distraction of litigation”.  As part of the settlement, anyone resident of the US who claimed to have purchased a can of Red Bull at some time after 1 January 2002 was eligible to receive either a $US10 reimbursement or two free Red Bull products with a retail value of approximately $US15, a webpage created to enable those affected to lodge their claim.  To avoid any similar claims, the company “voluntarily updated its marketing materials and product labeling".

Advertising is often a mix of puffery and specific claims which can be actionable, depending on the circumstances, either in damages or restitution.

So every case is decided on its merits.  A case before the Federal Court in Australia in 2017 held that a false assertion an app had “the most property listings in Sydney” was a misrepresentation because uncontested evidence proved otherwise although the court note were the app to claim it was “the best” app of its kind that would be mere puffery because, in that context, the phrase “the best” means nothing in particular because it’s not something which can be reduced to a metric or precisely defined.  More intriguing for those who like to speculate when grey turns black or white was the Pepsi Points Case which was in many ways similar to Carlill v Carbolic Smoke Ball Company.  PepsiCo’s advertising included a point system which customers could use to redeem prizes and one campaign had offered a military jet fighter (then invoiced by the manufacturers at US$23 million odd) in exchange for 7 million "Pepsi Points" (then worth US$700,000).  Mailing a $700,000 cheque to PepsiCo, a customer asked to collect his jet.  The court held the offer was “mere puffery” on the basis of (1) aspects of the campaign which clearing indicated “its jocular nature”, (2) that no reasonable person would believe a US$23 million jet could be obtained by exchanging US$700,000 and it was (3) anyway impossible for the company to deliver a military fighter jet in operable condition to a civilian customer.  It was an interesting case because it might have been decided differently if the object had been closer in value to the points mentioned and been something there was no legal impediment to supplying (such as a US$1 million car).  Were it a US$143 million car (there is one), the promotion would presumably still be judged puffery but at some point, it must be that the relative values would be close enough to for the “reasonable person” test to apply.  That however is something impossible to reduce to an equation and each case will be decided on its merits.  Just to be sure, PepsiCo bumped up by several orders of magnitude the points required to start one’s own air force up and added some text to make it clear the whole thing was just a joke.

In the matter of Tyrrell’s Crinkly Crisps.  Often packaging & advertising will contain a number of claims, some of which will be mere puffery (even if it’s easy to prove blatantly they’re untrue) while others need to be verifiable:

2 Pack: Not puffery; every pack must contain two packets.  There have been instances when customers have complained they’ve received more than was advertised and paid for but it’s rare.  Usually, such things are treated as “windfalls”.

Vegan: Not puffery; the contents must be vegan (as defined in the regulation of whatever jurisdiction in which they’re sold).

Triple Cooked: Probably puffery because it’s doubtful the term has any legal definition although were it possible to prove the production process is essentially the same as for any other crisp (chip), it might be actionable.  Because “triple” does have a defined value, were it proved the goods were cooked only twice as long as the practice of other manufacturers, that would presumably compel a change of text to “Double Cooked”.

More Crunch: Probably puffery because the measure of such things is so subjective and there is a point at which to increase crunchiness becomes self-defeating because other desired qualities will be lost.

Crinkly Crisps: Not puffery; the crisps must to some extent be crinkly although it might be fun to have a judge explore the margins and tell us how slight a corrugation can be while still being called “crinkly”.

No Artificial Nasties: Not puffery; these packets probably contain artificial ingredients because they’re almost impossible to avoid in the industrial production of food.  What constitutes a “nasty” is however a thing of quantity as well as quality; something millions every day harmlessly (even beneficially) can be a toxic “nasty” in large quantities so what’s included in the packet will be safe as supplied.  If potential “nasties” are found to exist in a quantity above a certain point, it’s actionable.

Gluten Free: Not puffery; unless there is an allowable quantity (ie trace amounts) permitted by regulation, there must be no gluten.

Sea Salt & Vinegar: Not puffery; sea salt is a particular type of salt so it must be used and there must be evidence of the use of vinegar.

165 g Net: Not puffery; each pack must contain 165 g of edible content +/- the small % of production line variation a court would deem acceptable.

Content guide (fat, energy et al): Not puffery; again, what’s claimed must be a reliable indication of the products within whatever small variation is acceptable.

Photograph with giant crisp: Puffery and an example of how the “reasonable person” test works in conjunction with an objective test of truth.  The packs do not contain crisps as large as is represented in the image (indeed, such would be too big even toi fit in the pack) and no reasonable person would believe this is what they’re buying.