CHOICE membership

Truth in Advertising, should we accept Puffery

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:

https://www.ashurst.com/en/news-and-insights/insights/federal-court-rules-on-the-best-form-of-puffery/

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.

https://researchbank.rmit.edu.au/eserv/rmit:162326/Vijayasingam.pdf

"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?

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I have read several articles which defined “puffery” as something that the average person in the street would not believe was true.

Examples such as the Telstra/Telecom TV ads featuring people in the 1980’s who bought mansions, superyatchs and helicopters from the money that they claimed that they had saved on some phone plans. Yeah right.

Our lawyers advised us years ago that the test for “puffery” and such things was determined by what the average person was likely to believe.

It concurs with the old adage that states “You can fool all of the people some of the time, and some of the people all of the time, but you cannot fool all of the people.all of the time”.

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I agree with Dr Ravinthiran Vijayasinga. There should only be truth in advertising. If a claim can’t be quantified and proven, then it shouldn’t be made.

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I think I get it. ‘Puffery’ has been ok because it is likely to be seen for what it is.

It seems rather cruel to consider the outcome at law is not absolute?

Time for a big change, not only because products are obscured through online delivery, but because most consumers are vulnerable at least some of the time.

P.S.
We appear to be saying puffery is ok because the alert and wise consumer is not influenced by the language. What does that say about the influence of puffery on the behaviours of those less aware, or caught in an emotional moment of weakness. Should we protect them and withdraw their right to be consumers? That would be a step too far, as at sometime all of us has fallen for the magic of the moment and purchased a product we did not need, worse one that we would not have purchased otherwise.

Perhaps an end to puffery in advertising might have positive flow on effects to others. When is a lie not a lie? Those with the power to change consumer law should know.

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Sometimes it gets down to subjective analysis. If I puff that ‘We are world leaders in XXXX’ what exactly does that mean?

It could be the most advanced leading edge products, it could mean the most volume sold, it could be the most revenue generated, it could be the most advanced R&D, and so on.

Puffery is allowed because it would be impossible to police in a meaningful way without so many footnotes there would be so much information it would still not be meaningful at the end of the day - much like a software agreement :wink:

Puffery is broadly subjective rather than objective and for a meaningful law there must be a rational way to assess and enforce it. With the weight of laws already on the books, I think it would be a step too far.

I would prefer a law that requires pollies to refrain from lying or misrepresenting (or opening their mouths except to eat and breath, same thing).

PS @grahroll, great topic!

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Eat your hearts out Fresh Food People. This is fresh: Portuguese tarts baked freshly on 11 March with 0% Australian ingredients and bought right here in Coles for morning tea on 11 March. But wait: it’s still midnight in Portugal.

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Classic.

So as not to be upstaged by Coles, Woollies is fighting back with their half price specials this week.

“Fresh caught” frozen barramundi with at least 40% Australian contents.

“Just caught” frozen prawn meat all the way from China.

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Possibly a consequence of, or relating to, https://www.accc.gov.au/media-release/coles-to-pay-25m-for-misleading-baked-today-and-freshly-baked-in-store-bread-promotion

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Thank you for that link. Being dated 2015 makes one wonder if there’s a little brinkmanship or perhaps memory lapse. I suppose the ingredients are exported as a dough to be called “made in P” and then baked or part baked here. Maybe nobody else makes Portuguese tarts, so it doesn’t offend as deeply as in the 2015 judgement.

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Blurs the lines I would have thought, as that is nominally the brand name, not a claim about the product.

So given that barra is listed as 58% of the product, are we to assume that the barra is 100% dodgy polluted stuff and the crumb coating is 100% Australian?

Yeah whether it is “fresh caught” is a whole other question.

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Not puffery, but so very annoying are things on sale “up to 25% store wide”. You might as well say “up to 100%”.

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It is a form of Puffery, just perhaps not quite as horrendous as others in some people’s opinions but I still don’t like (in fact I abhor it) it’s use. I will in fact make a point of not using that business during those Sale offerings and writing them a letter when I see it…maybe a bit OCD but that’s my right to advise them what I think is not so ethical behaviour.

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Maybe not though. If they say, for example, “up to 70% store wide” but there is nothing that is discounted by 70% and indeed the maximum discount is 25% then “up to 70%” looks like a lie. At best it might be misleading.

I have no idea whether any company has ever been pinged for this i.e. tested in court.

As a general rule “up to” should always be viewed with suspicion, since it tells you nothing about the specific case that you are interested in even if there is one case where it is true.

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Just saw this ad on tv for some kind of Nivea makeup removal wipes.
Technically it’s not wrong but you got to hand it to them for doing their best to bamboozle their customers.
Surely even 1% is “up to 100%”.

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:rofl::rofl:
Relies on the average consumer reading, hearing or remembering only the 100% part of the messaging. Puffery?

In my personal experience it would be 100% guaranteed to remove what’s not there.

Note:
Does it say which types of make up and skin types it can achieve 100% on.

There is an existing topic on

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Watching commercial TV adds, it’s just one outrageous claim after another. It’s all quite legal of course. The layers would have seen to that. But it really wears one down. Most of us can resist these claims but there are many out there that can’t. There are some that I know that honestly believe that advertisers wouldn’t be allowed to say it if it wasn’t true. It’s these unfortunates that get taken advantage of. It’s not right!

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As indicated by @mark_m there is an existing topic where your post fits perfectly; so I have moved your post over to join the other examples.

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Jogging into politics ‘Truth in Advertising’ is yet another ‘truth’ that pollies cordon themselves from worrying about, and circle their wagons. Seems a bi-partisan all-in activity. It is not corruption, it varies from lying to wilful misrepresentation that works because it is allowed.

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Another case of bad behaviour being steadily normalised.

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One consideration is the implied right to freedom of political communication. A law that is too onerous may simply be struck down.

A difficulty is that it may be impossible to prove that a lie has been told. Take “Mediscare” as an example. The ALP says that an elected Coalition government is going to dismantle Medicare. Suppose the lie works and the ALP wins the election. So now there is no elected Coalition government - so it won’t be possible to prove what the Coalition government would or would not have done if it had been elected.

It is unclear whether the onus would be on the party to prove the lie or the onus on the other party to prove the reverse. I can see how this could be weaponised to force a political party to reveal things that it doesn’t want to reveal. Example: I accuse you of X. You sue me for defamation - but the only way for you to win your case involves revealing things that you are trying to keep secret.

And the other side of the coin: I accuse you of X. I am actually right. But the holder of the only information that would establish the truth of my claim is you.

A question would be what the consequences would be if, by some miracle, a lie is proven. We declare the election as invalid and run the election again? The person who authorised the original statement is the sacrificial lamb?

One difficulty with the whole idea is that it involves testing non-factual and inherently political claims in a court of law. Example: “Party D is a better economic manager than Party E.” Or, related, “Taxes will be higher under Party E.” Are these claims that should be being tested in a court of law?

Another consideration is whether all judges, as voters, would have to recuse themselves.

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