7 - On Puffery

Summary

Puffery is a concept that purports to be about things consumers ignore and don’t rely on. It is in fact a concept about things courts ignore and won’t rule on. At the moment, marketing and other empirical work has essentially nothing to say about puffery in the courts; puffery consists of precisely the elements of advertising for which courts neither require nor allow empirical evidence of consumer reaction.¹ That doesn’t make the doctrine wrong, but it does mean that explanations for the doctrine should not be founded on unsupported, mostly unsupportable judicial assertions about how consumers think and what advertising claims they disregard. Instead, this chapter will argue, puffery should be about what kinds of advertising claims are too difficult to evaluate for their truth in judicial settings. That’s an epistemological determination that judges are actually well qualified to make, unlike the idea that consumers don’t rely on puffery.