Faster than a speeding bullet! Puffery and performance characteristics of advertising in the 21st century

Key Points:

Hyperbole will always be part of advertising, but advertisers should remember that an objective representation linked specifically to a characteristic of a product's performance is unlikely to constitute acceptable puffery and any substantiating data needs to be able to withstand scrutiny.

In 1891, the manufacturer of the "Carbolic Smoke Ball" published an advertisement to the effect that if anyone who used the smoke ball according to the instructions for two weeks "contracts the increasing epidemic influenza, colds, or any disease caused by taking cold", it would pay 100 pounds to that person. When a customer claimed this reward and the company attempted to renege, three Judges in the UK Court of Appeal, apparently oblivious to puns, considered whether the offer by the smoke ball company was a "mere puff". They held that it was not.1 But the concept of a "puff" had arrived, and has remained in advertising and marketing law ever since.

Fast forward to 2014. International soft drink company Red Bull GmbH has agreed to pay US$13 million towards consumer compensation to settle a class action in the United States, after extensive advertising the "performance enhancing" qualities of its product over many years.

Red Bull's wings get clipped

The well-known advertising slogan Red Bull Gives You Wings might well be considered the epitome of a puff. It is difficult to envisage any consumer believing the statement literally. The advertisements often combined it with imagery of outrageous stunts or cartoons of impossible scenarios, all apparently being achieved through the use of Red Bull.

However, the class action complainant alleged that "by promising that, among other things, "Red Bull gives you wings" the company was preying upon consumers. He argued that the...