“Puffing,” the expression of the seller’s subjective opinion of a product—usually embellished with superlatives—is a kind of falsity considered not to be misleading in American law. Puffing is ubiquitous in advertising, consider such claims such as “The Ultimate Driving Machine.” Puffing cannot include facts, and as such, the law assumes that consumers do not incorporate information from puffing to make product decisions.

That raises a question: if we do not think consumers believe puffs and if we assume that it does not affect product decisions, why is there so much of it? Professor Ivan L. Preston waged a decades-long battle against puffing, arguing that if puffing is, “deceptive,

[the advertiser] is acting illegally. If it’s not, he’s encouraging distrust and contributing to a credibility gap that may lead to rejection of his true factual claims as well as his puffs.”[1]

Preston argued that caveat emptor has its roots in the 1534 work by Sir Anthony Fitzherbert on animal husbandry, describing the problem of warts on horses for sale[2]:

caveat_emptor_webAccording to Preston, the law’s modern tolerance for puffing dates back to this common law precedent that makes the buyer responsible for problems in products that the buyer can inspect. The common law recognized two exceptions to the caveat emptor rule—even where the buyer could inspect a good, caveat emptor did not apply where the seller made a fraudulent misrepresentation or a warranty (in modern law, a promise or statement about the quality of features of a good). Over time, the inspection rule evolved into a general proposition that certain claims are meaningless and ignored by the consumer.

Preston proposed that consumer protection law should not make puffing immune to false advertising claims, because consumers infer factual information from them. Thus, puffs should be considered deceptive if they include implied claims that are false.[3]

As the Edward Snowden affair causes companies to make more representations about security of products, lawyers will need to evaluate whether they are puffing or real claims about protection for data. More broadly, in its complaints, the Commission often quotes anodyne, pro-privacy language from privacy policies (material such as “We value our users’ privacy first and foremost. Trust is the basis of everything we do, so we want you to be familiar and comfortable with the integrity and care we give your personal data.”). Companies often want to include such language to assuage consumer fears about revealing data. Thus we need to evaluate whether such statements are representations that can give rise to false advertising and Section 5 claims.

[1] Why Use False Puffery?, If Anyone Believes It, It’s Got to Be Illegal, The New York Times, Feb. 25, 1973.

[2] The Book of Husbandry (1882), https://archive.org/details/bookofhusbandry00fitzuoft (“There is a defect in a horse, that is neither soreness, hurt, nor disease, and that is, if a horse has warts of the behind, beneath the place a horse has lameness, for then he is not marketable goods, if he is wild; but if the horse is tame and has been ridden upon, than let the buyer aware, for the buyer has both his eyes to see and his hands to handle the horse. It is a saying that if such a horse should die suddenly, when he has live as many years as the moon was days old, as such time as he was fouled.”)

[3] Ivan L. Preston, The Great American Blowup: Puffery in Advertising and Selling (revised edition 1996).