In everyday language, puffery refers to exaggerated or false praise.[1] Puffery serves to "puff up" what is being described. In law, puffery is usually invoked as a defense argument: it identifies futile speech, typically of a seller, which does not give rise to legal liability. In a circular manner, legal explanations for this normative position describe the non-enforceable speech as a statement that no "reasonable person" would take seriously anyway.[2][3]

1881 Italian ad for Cannabis indica cigarillos, promising to "stop the most violent attacks of asthma, nervous cough, colds, extinction of voice, facial neuralgia and insomnia, and to combat all laryngeal and respiratory ailments."

OriginEdit

In a legal context, the term originated in the 1892 English Court of Appeal case Carlill v Carbolic Smoke Ball Company, which centred on whether a monetary reimbursement should be paid when an influenza preventive device failed to work. The manufacturers had paid for advertising stating that £100 would be paid in such circumstances then failed to follow this promise. Part of their defence was that such a statement was "mere puff" and not meant to be taken seriously. While the defence ultimately lost the case, the principle was confirmed that certain statements made by advertisers that were obviously not made in a serious manner could be exempt from usual rules relating to promises in open contracts.

Legal historyEdit

The legal history of puffery is part of the history of the mass market. In the eighteenth century, the term "puff" was important for the law of auctions, where it implied the act of a person employed to bid at an auction in order to raise the price. That person was known as a puffer. In 1776, Lord Mansfield in England undercut the use of puffers by defining it as fraud, a decision that led to almost a century of debates about the extent of the prohibition and its implications for the validity of auction sales.[4] Meanwhile, from the 1820s, and with increasing intensity after the mid-nineteenth century, the term "puff" was used in English law in its earlier popular meaning, and so with an inverse implication. Rather than a fraud that might undermine the validity of market transactions, the puff came to stand for inertness or futility that could not influence anyone, and therefore also for the opposite of legally-serious speech. A puff emerged in law as a speech that does not give rise to legal liability. The process occurred in multiple legal fields, including contracts, torts, criminal law, and trademarks. The context for the historical shift of emphasis in the legal use of puffery, from fraudulent speech—as applied in auctions, to idle speech—as it began to emerge from the 1820s, was the changing structure of the market, which was moving towards mass consumption on the basis of mass advertising. Legal change was in dialogue with cultural anxieties provoked by this development of capitalism.[5]

One of the most famous cases concerned with puffery was the 1892 English Court of Appeal case Carlill v Carbolic Smoke Ball Company, which centered on whether a reward should be paid when an influenza preventive device failed to work. The manufacturers had paid for advertising stating that £100 would be paid in such circumstances but refused to respect that promise. Part of their defense was that such a statement was a "mere puff" and not meant to be taken seriously. While the defense ultimately lost the case, the court also acknowledged that certain statements made by advertisers would not give rise to liability. Specifically, the court implied that the cure promises that appeared in the Carbolic Smoke Ball advertisement were not serious enough to attract legal liability. For this reason, it justified the decision to hold the company liable by referring to a different part of the advertisement, which mentioned money deposited in the bank.

Traditionally, the doctrine of puffery in law has been understood as a legal preference for sellers over buyers, and therefore as a case of caveat emptor ("buyer beware"). However, the doctrine actually had a dual implication. Alongside the protection for sellers and encouragement of advertising, it also involved a legal inferiorization or ridicule of advertisements, viewed as the paradigmatic case of the sales pitch. By treating puffs as unserious, the doctrine sent a message that degraded advertising as a field, in line with widespread attacks on the rise of mass advertising.[6]

Federal Trade Commission definitionEdit

The United States Federal Trade Commission (FTC) defined puffery as a "term frequently used to denote the exaggerations reasonably to be expected of a seller as to the degree of quality of his product, the truth or falsity of which cannot be precisely determined."[7][8]

The FTC stated in 1983 that puffery does not warrant enforcement action by the commission. In its FTC Policy Statement on Deception, the Commission stated: "The Commission generally will not pursue cases involving obviously exaggerated or puffing representations, i.e., those that the ordinary consumers do not take seriously."[9]

Puff pieceEdit

Puff piece is an idiom for a journalistic form of puffery: an article or story of exaggerating praise that often ignores or downplays opposing viewpoints or evidence to the contrary.[10] In some cases, reviews of films, albums, or products (e.g., a new car or television set) may be considered to be "puff pieces", due to the actual or perceived bias of the reviewer: a review of a product, film, or event that is written by a sympathetic reviewer or by an individual who has a connection to the product or event in question, either in terms of an employment relationship or other links. For example, a major media conglomerate that owns both print media and record companies may instruct an employee in one of its newspapers to do a review of an album which is being released by the conglomerate's record company.

Although some journalists may assert their professional independence and integrity, and insist on producing an unbiased review, in other cases a writer may succumb to the pressure and pen a biased "puff piece" which praises the product or event while omitting any discussion of any shortcomings. In some cases, "puff pieces" purport to provide a review of the product or event, but instead merely provide peacock words ("an amazing recording"; "revealed" for 'announced' or 'said'), weasel words ("probably one of the most important albums of the 2000s"; "Perhaps one of the leading bands of the 2010s") and tabloid-style filler which is peripheral or irrelevant to assessing the qualities of the product or event ("during the filming, there were rumours that romantic sparks flew between the two co-leads, who were often seen talking together on the set").

The financial relationship between the product company or entertainment firm and the reviewer is not always as obvious as a cash payment. In some cases, a small group of reviewers may be given an exclusive invitation to test-drive a new sports car or see a new film before it is released. This privileged access to the product may lead the reviewer to do a biased review, either out of a sense of obligation, or because of a concern that the failure to produce a "puff piece" will lead to the loss of future preview privileges. In some cases, the potential for bias in invitation-only preview sessions is substantially heightened when the reviewers are flown in to the location for the review, given fancy hotel rooms, and provided catered food and drinks during the actual review. The most egregious cases of this situation occur when, instead of inviting the reviewers to the company headquarters or another logical venue, the company gives all-expense paid tickets to Hawaii or Mexico, and holds the preview screening of the film or the product launch there.

A particular use for puff pieces may be in health journalism. Providers of alternative medicine may be unable to make claims due to laws against false advertising, but they may be able to place stories and testimonials with journalists who can write as they wish under press freedom laws. Recruiting health journalists to write puff pieces may be a lucrative way to build the reputation of a product that has no effect.[11]

See alsoEdit

ReferencesEdit

  1. ^ puffery in Oxford Dictionaries
  2. ^ Newcal Industries, Inc. v. IKON Office Solutions, 513 F.3d 1038, 1053 (9th Cir. 2008).
  3. ^ William Reynell Anson, Principles of the English Law of Contract (7th ed., OUP, Oxford 1893)
  4. ^ 0 Bexwell v Christie (1776) 98 ER 1150. The Sale of Land by Auction Act 1867, 30 & 31Vict c 48, clarified some of the contentious issues between equity and common law
  5. ^ Anat Rosenberg, "Legal Ridicule in the Age of Advertisement: Puffery, Quackery, and the Mass Market," American Journal of Legal History, 2021; https://doi.org/10.1093/ajlh/njab009
  6. ^ Anat Rosenberg, "Legal Ridicule in the Age of Advertisement: Puffery, Quackery, and the Mass Market," American Journal of Legal History, 2021; https://doi.org/10.1093/ajlh/njab009
  7. ^ Better Living, Inc. et al., 54 F.T.C. 648 (1957), aff'd, 259 F.2d 271 (3rd Cir. 1958).
  8. ^ "FTC Policy Statement on Deception" (PDF). October 14, 1983. p. 4.
  9. ^ "FTC Policy Statement on Deception" (PDF). October 14, 1983. p. 4.
  10. ^ "puff piece (Answers.com)". The American Heritage Dictionary of Idioms. Houghton Mifflin Company. 1992. Retrieved 2006-07-22.
  11. ^ Goldacre, Ben (2009). Bad science (Fourth Estate pbk. ed.). London: Fourth Estate. ISBN 9780007284870.

Further readingEdit