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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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