In September on CorpCounsel.com (an affiliate of the Law Journal) we wrote about the particularly dire consequences of making advertising claims supposedly supported by surveys, studies or clinical proof, when in fact proof was lacking. As we reported, the makers of 5-Hour Energy felt the sting of multistate lawsuits filed by attorneys general targeting “scientific” but allegedly unsupported claims of efficacy. More recent headlines reveal that Red Bull GmbH agreed to a $13 million settlement because its product doesn’t actually “give you wings” and that the Dr. Pepper Snapple Group was targeted with class action suits because its Snapple beverages were not actually made from “the best stuff on earth.” These developments might give you the impression that even puffery-based advertising is susceptible to false advertising suits.
The rule that puffery is not actionable as false advertising is alive and well. However, a look beyond the recent headlines reveals the dangers of making any objective claims about products that are not definitively provable, even where such claims are mere drops in a sea of puffery.
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