We all expect that there will be claims made in advertising that stretch the bounds of truth, that exaggerate the quality or benefits etc of a product or service. Should we really be allowing it?
This brings me to the reason for this topic ie the use of Puffery.
Firstly the ACL makes it illegal to use misleading or deceptive claims or to use misleading or deceptive conduct:
Puffery is defined in the Business Dictionary (http://www.businessdictionary.com/definition/puffery.html) as:
“Advertising or sales presentation relying on exaggerations, opinions, and superlatives, with little or no credible evidence to support its vague claims. Puffery may be tolerated to an extent so long as it does not amount to misrepresentation (false claim of possessing certain positive attributes or of not possessing certain negative attributes).”
There has been ACCC and business legal action taken on unsubstantiated claims made in advertising by other businesses. To be successful the ACCC or a business has to prove there is a definite, specific or quantifiable meaning that a target group/person/persons would more probably rely on than not, that was deceptive or misleading in the claims made by the other party. An article that references one such case can be read at:
From the linked article the following three claims were taken by the Federal Court to be puffery and therefore not a breach of ACL as they were not considered definitive in their meanings.
- “The best property listings in Melbourne are on Domain”
- The Domain app is the “#1 property app in Australia” because it allows the user to view “the best property listings in Melbourne”
- The Domain app is the “#1 property app in Australia”
Puffery is taken to be an indefinite & less likely to be relied upon claim and is not an offence under the ACL. I take it to be that it isn’t considered to be deceptive or misleading enough to cause harm to consumers.
There has been a couple of mentions about Puffery on this site:
one by @meltam in a closed group that is quoted here as it isn’t really a comment that I think would be seen as sensitive.
and the other is
So particularly in these days where there is so much commerce conducted online and we have little chance to examine a product or service before we purchase it via online portals, my questions are
Should Puffery be considered as deceptive claims ie Should advertisers be allowed to make claims that are exaggerations, opinions &/or superlatives that have the little or no credible evidence to support those claims?
Isn’t it deceptive or misleading conduct by them to produce such advertisements?
A 2017 PhD thesis by the now Dr Ravinthiran Vijayasingam argues that we should take them as influencing and that the Law needs to change.
"6.8 Recommendation summary
A strong case has been presented for the need for tighter regulation in the area of puffery in online advertisements. Consumers will benefit from better protection,and the law will keep pace with changes in the way world trades. A recommendation can now be made to the ACCC for consideration of the need for tighter regulation and the benefits that flow from greater clarity in the area of misleading practice and the role puffery plays in it. The blurred line between puffery and misleading practice need not exist anymore if puffery is classed as a misleading practice. The conception that puffery is not actionable because it is not believed has to be cast aside. Puffery is an exaggeration. Evidence in this study proves that it is an effective tool in influencing consumers’ perceptions. It creates uncertainties that are open to exploitation. The growing problem of misleading practice and efforts that need to be taken to regulate it can be reduced."
What are others thoughts on this matter?
Does CHOICE have any opinion on this matter and should the matter be progressed further?