Saturday, April 27, 2024

Sunshine and Unicorns

One has to be careful of unicorns. They may be the stuff of fantasy and fabulists, but like "black swans", they can also be understood in stock market terms. A unicorn company is valued at a billion dollars before it is launched on the stock exchange. A black swan is an event that almost no one saw coming.

In terms of advertising law and "truth in advertising", Sunshine and Unicorns could well the fair game and the stuff of puffery. 

Puffery is not illegal. Puffery is a claim that is so exaggerated that a reasonable person would not take it seriously. It's a bit like obscenity (except that obscenity is illegal) in that one knows it when one sees it.

The sun is generally accepted to rise out of the East, and not out of a cereal container, or container of pieces of fruit clearly supplemented with great deal of sugar as explained on a list of nutritional facts. Sunshine is a commmon metaphor for "happiness".

The legal influencers of the Global Advertising Lawyers Alliance (GALA) explain what is and is not puffery. Authors may extrapolate how far they can go in their own advertising, based on the lines that purveyors of so-called feel-good food may toe, but should not cross.

http://blog.galalaw.com/post/102j5hv/is-goodness-and-nutrition-a-claim-requiring-substantiation

If an advertising claim is vague and aspirational, it is puffery.

The legal bloggers of Crowell & Moring LLP discuss puffery and many parameters of lawful versus illegal (misleading) advertising in a helpful Q & A format.

https://www.lexology.com/library/detail.aspx?g=7f2682ea-a6cb-4e1d-b65b-75964f33decf

"In the United States, ‘puffery’ is generally viewed as exaggerated statements or empty superlatives that no reasonable consumer would rely upon. For example, ‘the best coffee ever’ functions as puffery because the statement is so subjective that no consumer expects it to be truthful."
Advertising can become problematic if it suggests something about a product that is not true, especially if it is demonstrably not true and a customer relies on the statement to make a purchase.

I extrapolate that it would be fine for me to claim that "Insufficient Mating Material" is the best book that I ever wrote for publication. That is obviously subjective, and I probably believe it.  

Disclaimer: if there is such a book as "How To Survive On A Deserted Island" I have never heard of it, I have never read it, and I intend no comparison with it except as an academic exercise in crossing the line of puffery... but if I were to write "Insufficient Mating Material is 'How To Survive On A Deserted Island' but with aliens and a lot of sex", I might cross a line. 

For much better advice, read the Crowell article by Amy Pauli, Dalton Hughes, Emily Kappers, Raija Horstman , Roy Abernathy, and Suzanne Giammalva which if full of insights and sound advice.  One striking point they make is that it is permissable to compare unlike products, but it might be considered disparaging to compare your work product with that of a named rival and claim that yours is better.

Even if you could prove that your work is better, it will be an expensive process and you could be spending your time writing your next best-seller (or not).

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