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Puffery and false advertising: What's the difference?

Back in the early days of advertising, the proverbial snake oil salesman would roll into town with a secret tonic or magic elixir that could supposedly cure everything from acne and arthritis to toothaches and gout in one convenient swallow.

By the time people realized that they'd been conned, he would have long moved onto another town, too far away to be worth tracking down.

Those days are long gone. Today, if a company markets a product and makes specific claims about it, there had better be evidence to back up those claims.

That doesn't mean that companies can't exaggerate their product a little -- they just have to be very selective about their wording and careful about the claims that they make. Otherwise, what might ordinarily be called "puffery," or hyperbolic self-praise, can become the subject of a false advertising lawsuit.

Take, for example, the 2016 case against Luminosity, the company that marketed its brain games as a program that could do everything from halt Alzheimer's in its tracks to delay the loss of mental acuity due to age or other disorders.

Ultimately, Luminosity was hit with a lawsuit from the Federal Trade Commission (FTC), America's watchdog agency that protects consumers from fraud. Investigation showed that Luminosity didn't actually have any reliable scientific evidence that their games improved the player's ability to do anything except play the games better with more practice.

Essentially, the difference between puffery and false advertising has to do with how factual the ads present their information to be. If nobody could reasonably take the ad seriously or there's no way to objectively verify the claim, it's probably puffery.

For example, saying that a used car you're selling is the best car you ever owned is sheer puffery -- there's really no way to prove or disprove that statement. On the other hand, saying that you just put brand new tires on the car when you actually put a new set of retreads on there instead is false advertising because it's a claim meant to deceive.

When in doubt, seek out an attorney who handles business litigation. For information on how our law firm could help make certain your business practices aren't opening you up to a lawsuit, please visit our web page.

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