Case Law Highlights Puffery as a Defense to Consumer Fraud Class Actions

Increasingly, class action litigation by consumers focuses on product advertising rather than on traditional theories of products liability such as design defect or failure to warn. This trend is based, in part, on state consumer protection statutes that ease, or eliminate, the reliance requirement applicable to common law fraud claims. Moreover, courts have shown greater willingness to certify class actions seeking economic damages for alleged misleading advertising than to certify class actions for personal injuries caused by alleged product defects. Claims for alleged misleading advertising have been asserted against manufacturers and service providers in a host of industries, including technology, food and beverage, construction and pharmaceuticals.

A threshold inquiry in any such action is whether the defendant’s advertising contains a misrepresentation of fact that can form the basis for a cause of action. Courts have long recognized that a claim cannot be based on a statement that merely expresses the manufacturer’s opinion or that sets forth a subjective description of the product’s qualities. Statements of this nature are regarded as “puffery,” an exaggerated recommendation of the product made for promotional purposes and, by their nature, are not actionable. Recent decisions emphasize the continuing importance of this principle.