The "Lies" Advertisers Can Legally Tell You

January 3, 2019

What does a company mean when they claim their product is the “world’s best?” Usually nothing. Step into the weird world of advertising puffery.

FULL TRANSCRIPT

Speaker 1: In the late 90s, there was a shadow war going on,

Speaker 1: a war that was fought right under

Speaker 1: our noses and right in our mouths.

Speaker 1: A pizza war.

Speaker 1: In the 1990s, delivery of pizza

Speaker 1: was a hot market, piping hot.

Speaker 1: Chains made all sorts of

Speaker 1: ridiculous claims about their pizza.

Speaker 1: Pizza could cure depression, reunite families.

Speaker 2: I got a brother.

Speaker 1: And somehow was the reason we defeated the Soviet Union.

UNKNOWN SPEAKER: [FOREIGN].

Speaker 1: This war was waged through advertising.

Speaker 1: Dominos claimed that the fastest delivery times.

Speaker 1: Little Caesars was the cheapest and Pizza Hut

Speaker 1: the largest chain dominated the dining experience.

Speaker 1: But a new competitor, Papa John's,

Speaker 1: had set its sights on overtaking Pizza Hut as

Speaker 1: the top chain by any means necessary,

Speaker 1: including featuring Pizza Huts founder in

Speaker 1: its commercials as a Papa John's franchise owner.

Speaker 3: I found a better pizza.

Speaker 1: The pizza war had gone nuclear

Speaker 1: but it was papa john's slogan

Speaker 1: that was the boldest strategy of all.

Speaker 1: It just straight up claimed its pizza was better.

Speaker 1: This was too much for Pizza Hut.

Speaker 1: And in 1997, it sued Papa John's for false advertising.

Speaker 1: There wouldn't be the last time Papa John's Schnatter got

Speaker 1: in trouble for saying something he shouldn't have.

Speaker 1: But the weird thing is Papa John's agreed with Pizza Hut.

Speaker 1: The company admitted in court that

Speaker 1: the slogan wasn't true and shouldn't be believed.

Speaker 1: Because of this, Papa John's

Speaker 1: won and got to keep the slogan.

Speaker 1: Papa John's used this weird loophole that

Speaker 1: sneakily exploited everywhere in advertising.

Speaker 1: A loophole where words can

Speaker 1: simultaneously mean everything and nothing at all.

Speaker 1: A loophole that kind of lets advertisers

Speaker 1: lie about their products and get away with it.

Speaker 1: [MUSIC] A slogan that can define a company.

Speaker 1: It's a way to hardwire a brand into a consumer's brain.

Speaker 1: Good slogans can create a feeling or a mood,

Speaker 1: like warm and fuzzy.

Speaker 1: But brands are competing for hearts and minds,

Speaker 1: so they need to set themselves

Speaker 1: apart from the competition.

Speaker 1: But what are claims like these based on?

Speaker 1: Usually, nothing.

Speaker 1: When advertisers make vague claims about their products,

Speaker 1: they're engaging in puffery.

Speaker 1: Puffery is a legal distinction

Speaker 1: for speech that is so exaggerated.

Speaker 1: A reasonable person would never believe it to be true.

Speaker 1: It's a defense against accusations of false advertising.

Speaker 1: Usually, any claim in an ad has to be backed up

Speaker 1: by some form of evidence, otherwise, it's deceptive.

Speaker 1: But puffery is making

Speaker 1: claims without any evidence because what they're

Speaker 1: describing according to the advertiser

Speaker 1: is impossible to define or measure.

Speaker 1: Competing companies and their lawyers debate what

Speaker 1: these taglines and slogans mean all the time.

Speaker 1: But who gets to decide if an ad is lying?

Speaker 4: My name is Hal Hodes. I'm a senior staff attorney

Speaker 4: at the Advertising Self-Regulatory Council.

Speaker 1: The ASRC is

Speaker 1: the first check on questionable advertisements.

Speaker 1: The first test for puffery is to ask if

Speaker 1: a normal person would believe what an ad is claiming.

Speaker 1: Remember [inaudible 00:03:19] where he walks into

Speaker 1: this dingy little coffee shop and they had

Speaker 1: a neon in the window that says "World's Best

Speaker 1: Coffee" and he bursts and he says-

Speaker 5: You did it.

MALE_1: [MUSIC] Congratulations.

MALE_1: World's best cup of coffee.

MALE_2: Nobody else in the scene thinks

MALE_2: this luncheonette has the world's best coffee.

MALE_2: The law understands that consumers aren't like Elf.

MALE_2: Consumers are like everybody else in the cafe.

MALE_3: [MUSIC] Spotting puffery may seem easy enough.

MALE_3: But what a word means can change from ad to ad.

MALE_2: So, the adjective means

MALE_2: different things in different contexts,

MALE_2: when it's attached to different nouns,

MALE_2: when it's presented in different visuals.

MALE_3: Context can be the line that separates

MALE_3: puffery from false advertising.

MALE_3: And Papa John's was pushing it.

MALE_3: Advertisements can serve two main purposes.

MALE_3: The first is brand identity.

MALE_3: Better ingredients, better pizza

MALE_3: by itself didn't mean anything,

MALE_3: but slapping the slogan on everything was

MALE_3: a good way to get people to remember Papa John's,

MALE_3: and it seemed to work.

MALE_3: But the second purpose is to promote

MALE_3: all the great stuff about your product,

MALE_3: like your tomato sauce.

MALE_3: In 1997, Papa John's began associating

MALE_3: better ingredients with the quality of

MALE_3: their sauce and that of their competitors.

MALE_3: Papa John's was saying

MALE_3: better ingredients meant better-tasting sauce.

MALE_3: So, Pizza Hut said prove it or ditch the tagline.

MALE_3: During the jury trial,

MALE_3: Pizza Hut called expert sauce and dough witnesses

MALE_3: to prove that customers couldn't taste the difference.

MALE_3: Seeing its brand identity under siege,

MALE_3: Papa John's threw the puffery Hail Mary,

MALE_3: admitting the slogan didn't mean anything.

MALE_2: They said that it was an expression of pride,

MALE_2: it's boasting, it's bluster.

MALE_3: But the court also ruled Papa John's

MALE_3: had to stop with the comparative ads.

MALE_2: If you're making a statement about what

MALE_2: consumers think, you need evidence.

MALE_2: If you're just stating your own boastful opinion,

MALE_2: you don't need evidence because

MALE_2: that's not something you can really prove.

MALE_3: But why do advertisers use puffery if

MALE_3: everyone admits it's a bunch of BS?

MALE_2: We need to have space for

MALE_2: companies to talk about their products

MALE_2: in vague and unspecific ways.

MALE_2: It allows the creativity on sort of

MALE_2: that brand identity as opposed to having

MALE_2: ads that only say my product is X measured by Y.

MALE_3: So what's the next fight on the puffery front lines?

MALE_2: The word superior, I

MALE_2: feel like whether or not you're sort of

MALE_2: saying good or better with the word superior is so,

MALE_2: such a fine line.

MALE_2: I think about these words way too much.

MALE_2: [LAUGHTER]