Comparative advertising pits products against competitors, balancing fair competition with truthful claims. U.S. law generally allows it, but regulates through the Lanham Act and FTC guidelines to prevent consumer confusion and deception.

Puffery involves exaggerated, subjective statements not meant to be taken literally. While often permissible, it faces limitations in false advertising defenses, especially when claims are specific, measurable, or likely to mislead consumers about product attributes.

Comparative Advertising

Comparative advertising and legal treatment

• Comparative advertising contrasts a product or service with a competitor's offerings explicitly or implicitly identifying the rival
• Legal treatment generally permits comparative advertising under U.S. law protected by First Amendment commercial speech doctrine
• Regulated by Lanham Act Section 43(a) and Federal Trade Commission (FTC) guidelines ensure fair competition
• Trademark law considerations allow limited use of competitor's trademarks under fair use doctrine (Pepsi vs. Coca-Cola ads)
• Must not create likelihood of confusion among consumers about product origin or association
• False advertising law mandates truthful and substantiated comparisons to prevent deception (Verizon vs. AT&T coverage maps)

Permissible vs misleading comparisons

• Permissible comparative advertising includes factual, verifiable claims with accurate product comparisons (Ford F-150 vs. Chevy Silverado towing capacity)
• Clear identification of compared products and appropriate disclaimers enhance transparency
• False or misleading comparisons involve unsubstantiated claims or misrepresentation of competitor's products (exaggerated battery life claims)
• Ambiguous or incomplete comparisons and unfair product selection for comparison can mislead consumers
• Key factors determining permissibility:
  1. Substantiation of claims with reliable evidence
  2. Overall impression on consumers considering context and presentation
  3. Fairness in product selection and comparison methodology

Puffery

Puffery in false advertising

• Puffery encompasses exaggerated, subjective statements or opinions not meant to be taken literally ("World's Best Coffee")
• Characteristics include vague or general claims, non-measurable statements, and obvious exaggerations
• Limitations as a defense:
  • Does not protect specific, measurable claims ("50% more effective than leading brands")
  • Cannot defend false factual statements ("Contains 0 calories" for a product with calories)
  • Ineffective if statement likely to mislead consumers about product attributes
• Relationship to comparative advertising scrutinizes puffery more closely in comparisons (risk of crossing into false or misleading territory)

Factors for puffery determination

• Specificity of the claim assesses general statements ("Amazing taste!") vs specific, measurable claims ("Contains 50% more protein")
• Consumer interpretation considers how a reasonable consumer understands the statement and its influence on purchasing decisions
• Context and presentation evaluate the overall advertising message and statement prominence
• Verifiability examines whether the claim can be objectively measured or proven with supporting evidence
• Industry standards and practices account for common exaggerations within specific markets (luxury car advertisements)
• Materiality weighs the importance of the claim to consumer decision-making and potential impact on market competition