Puffery

● Puffery is a statement or claim that is promotional in

nature. It’s usually subjective and not to be taken
seriously.
● Examples of these include claiming that one’s product is
the “best in the world”, or something completely
unbelievable like a product claiming to make you feel like
you’re in space.
● Most consumers usually just disregard outlandish claims,
unless a brand successfully associates it as a slogan, such
as Red Bull’s claiming it gives you wings. Though
customers don’t really believe the energy drink will literally
give them wings, Red Bull has successfully used the
statement to improve their brand position.
 The Seller’s Privilege to Lie
(Caveat Emptor)
● One of them is the successful $13 million class action lawsuit against Red
Bull in 2014. No, not because the drink didn’t really give you wings, but
because they claimed that their drink could improve concentration and
reaction speeds, when in fact, it couldn’t be scientifically proven. Red Bull,
however, maintains that their labeling is accurate.
● This example shows how dangerous it is to skirt the issues of false advertising
with puffery. Perhaps Red Bull really does improve concentration and
reaction speeds, though only for a short time, and only for certain people. I’m
sure we know someone who thinks better and reacts more quickly when they
get their daily dose of caffeine.
● Reputation at stake - The U.S. National Library of Medicine – National
Institutes of Health even published a paper claiming that caffeine reduces
reaction time and improves performance after testing it in a simulated
contest of taekwondo. However, in this case, the court still ruled against Red
Bull as it alleges that they pushed it too far — which becomes the problem
for marketers as there is no clear quantitative border on what is too far.
 False & Misleading Comparisons
The provisions pertaining to comparative representation were part of “Unfair Trade Practice” under the
Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act). After repeal of the MRTP Act, the
provisions relating to unfair trade practices were inserted in the Consumer Protection Act, 1986.
However, a business entity cannot claim relief against unfair comparative advertising under the
Consumer Protection Act, as a business entity is not a consumer. This can be taken up only by
consumer associations, the central government, or state governments, and it does not provide
protection to the business entity equal to the protection under the MRTP Act. Thus, under the existing
law, a manufacturer whose goods are disparaged has no standing to seek a remedy. Presently, in the
absence of any specific legislation regulating comparative advertising, disputes are decided by various
courts on the basis of the facts in each case. However, ASCI Code (which is made part of the Cable
Television Network Rules, 1994 as well) permits advertisement containing comparisons including those
where a competitor is named in the interests of vigorous competition and public enlightenment,
provided:
● t is clear which aspects of the advertiser’s product are being compared with which aspects of the
competitor’s product
● The subject matter of comparison is not chosen in such a way as to confer an artificial advantage
upon the advertiser or so as to suggest that a better bargain is offered than is truly the case
● The comparisons are factual, accurate and capable of substantiation
● There is no likelihood of the consumer being misled as a result of the comparison, whether about
the product advertised or that with which it is compared
● The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or
advertisements directly or by implication.
Presently, ASCI is actively taking action against any advertisements making unsubstantiated claims,
exaggeration, unfair denigration in violation of the ASCI Code.
Have you ever seen commercials promoting
Bacardi Music CDs but can never seem to find the
product anywhere? Does it make you wonder why?
Read on to find out. These well-known liquor
brands, similar to cigarette or tobacco brands, are
banned from promotion campaigns. The brand
managers of these products have thus devised a
new style of promotion - surrogate
marketing/advertising.
Surrogate advertising is used for promoting a brand
or a product indirectly. It essentially utilizes a
substitute product, brand or person to communicate
the real product to the target customers. It works as
a collaborative strategy to achieve exponential and
rapid publicity. Promoting a product and a service
together to achieve profits from both is an excellent
example of positive surrogate marketing.
 Surrogate Advertising
The ASCI Code provides that advertisements of products whose advertising is
prohibited or restricted by law or by the ASCI Code must not circumvent such
restrictions by purporting to be advertisements for other products the
advertising of which is not prohibited or restricted by law or by ASCI Code. To
determine if there is an indirect advertisement of prohibited products due
attention shall be given to the following:
● Visual content of the advertisement must depict only the product being
advertised and not the prohibited or restricted product in any form or
manner.
● The advertisement must not make any direct or indirect reference to the
prohibited or restricted products.
● The advertisement must not create any nuances or phrases promoting
prohibited products.
● The advertisement must not use particular colours and layout or
presentations associated with prohibited or restricted products.
● The advertisement must not use situations typical for promotion of
prohibited or restricted products when advertising the other products. The
Cable Television Networks Rules, 1994 also impose similar restrictions to curb
surrogate advertising.
 More
Some of the first evidence of surrogate advertising was seen by the Indian tobacco
Company ‘Azad Bidi’, who sponsored an international cricket match in India.[4] In India,
extensive surveys resulted in similar findings which showed that liquor ads had direct
influence on consumers' purchasing behavior. Soon afterwards, the Cable TV Regulation
Act banned liquor and cigarette advertisements; thus, India gradually adopted surrogate
advertisements.
Such companies usually either go for brand extension and promote the extended products,
or promote certain products which might not be available in the market. The excessive
pressure of the ban forced companies to focus more on brand building and thus liquor
companies started sponsoring and hosting glamorous events, yet many others started
distributing t-shirts, caps, key chains, drinking glasses with the brand name displayed on
these products.

The Allahabad High court has ordered
the Uttar Pradesh government and its
Excise Department to enforce the ban
on surrogate advertisement of liquor on
TV and in cinema halls, newspapers
and other mass media
The petition pointed out that though the
advertisements were ostensibly for
publicity of music CDs and drinking
glasses, the name of these products were
written in very small font and were hardly
visible.
The advertisement, however, carried bold
logos of various popular brands of liquor
without using the word "liquor" to escape
punishment under the law, the petition
pointed out.
The petitioner claimed that the liquor
manufacturers and their vending firms
spend huge amount of money on these
advertisements to encourage the sale and
consumption of liquor and succeed in their
design.
Some liquor companies which were made
parties to the petition, defended the
practice claiming that they also produce
other products like soda and glasses under
the same brand name and the law does not
ban their advertisements.
 Subliminal Advertising
● While there are no laws defining subliminal advertising or to restrict
such practice, misleading advertisements are banned and restricted.

● Today, the use of subliminal messaging is banned in many countries.

Unsurprisingly, the United States does not expressly forbid the use of
subliminal messages in advertisements, though their use does fall under
federal law enforcement jurisdiction.
Some consumers are concerned about businesses using covert
methods to influence purchasing decisions. They fear that
some of the methods used by the advertising media can have
such an effect on the human psyche that a person might find
themselves doing something they wouldn’t have done
otherwise, like buying a product. In fact, so great was this fear
that the Federal Trade Commission issued a complete ban on
subliminal advertising in 1974. The method is general illegal
today, but that doesn’t mean major brands might not skirt
around the issue, finding ways to influence the public covertly.
Examples
The most classic examples of subliminal advertising and messaging include:

-Embedding a message in a song, either in the higher or lower frequencies or

by singing something backwards

-Words and images briefly flashing in between frames of film, usually at one
tenth of a second

-Drawings or photos that contain hidden or subtle images, such as words

spelled out in clouds in the background
 Different Types of Subliminal Messages
Subliminal stimuli can come in various forms, as long as they cannot be consciously perceived. However, when
it comes to popular media, and especially advertising, there are three kinds of subliminal messages:

● Subvisual Messages

Subvisual messages involve the quick flashing of visual cues. Usually, these cues are flashed for just a few milliseconds at
a time so they cannot be consciously perceived. The only way you would be able to perceive them is if you could pause
the video at that exact moment when the message flashes on the screen.

● Subaudible Messages

These are audio cues inserted in audio messages. For example, you could put a low volume audio message within a
much louder audio message, such as a song. The low volume audio message will not be consciously heard unless the
louder source is removed, but it will definitely register in the subconscious.

● Backmasked Messages

Backmasking is the practice of recording an audio message backward to play it forward and disguise the message within.
Since the message is reversed when it is played, it will sound like meaningless garble when heard by the listener and they
won’t be consciously aware of it. The only way they can hear the message is if they reverse the audio recording.
 Political Advertising
It has the following provisions
● Political advertisements are prohibited for a period of forty-eight hours
ending with the hours fixed for conclusion of polling for any elections in a
given polling area. The law stipulates that during this time, a person shall not
display to the public any election matter by means of cinematography,
television, or other similar apparatus.
● Use of displaying posters, signboards, and similar means for political
advertisement in any public place must be strictly in accordance with the
relevant provisions of the local laws
● Equitable opportunity to all political parties and candidates are to have
access to public advertisement space for election-related advertisements
during the election period
● Use of private premises for political advertisement may be made only with
the voluntary permission of the occupant
● Prohibition of any and all advertisements is at the cost of the public
exchequer regarding achievements of the political party/ruling government
The statute provides for a penalty of imprisonment and/or fine for anyone,
 Manipulation of Research in Advertising
● There are no restrictions on the use of models as doctors, nurses, or
lawyers; however, there should be no misleading or controversial
advertisement.
● No current restrictions for use of foreign languages, but other applicable
laws need to be followed.
● The Drugs and Cosmetic Act, 1940 prohibits advertisements for any
drug or cosmetic from using reports of tests or analysis of the Central
Drugs Laboratory or by a government analyst.
Due to Indian laws, Sensodyne cannot use dentists
practicing in India in its commercials. So the brand
typically scouts for dentists abroad, mainly the UK. They are
usually first-generation immigrants with not so
pronounced accents so as to not alienate Indian audiences
while retaining the brand’s premium edge.

“Indians also have high aspiration for international brands

so frankly that’s also rubbed off on the brand. Sensodyne is
a premium brand and we also command a premium over a
regular toothpaste because we are a specialized brand. So
it’s worked both ways.”
 Doctor's Recommendation
The headline for a poster campaign advertising Colgate toothpaste
declared "More than 80% Of Dentists recommend Colgate" and "Colgate,
used and recommended by most dentists".

Colgate were told not to repeat the claim in any further advertisements and
the ASA served them with a reminder that it is a breach of CAP Code to use
health professionals to endorse products classified as medicines. All in all,
the poster was held to have breached CAP Code clauses 3.1
(Substantiation), 7.1 (Truthfulness), 14.5 (Testimonials) and 50.17
(Endorsement of medicines)
 According to the Dutch advertising code, it is
forbidden to spread “fake news” or untruths.
Therefore, toothpaste manufacturers substantiate
the claims of being the best with the surveys GSK advertises that 9 out of 10
conducted by their marketing research teams. By dentists recommend using
asking targeted questions, the market researchers
Sensodyne. While Procter &
can frame a conclusion that is beneficial to the
product’s reputation. If you ask a dentist if they Gamble claims that Oral-B the
would recommend brushing your teeth with a most-used brand by dentists
certain brand opposed to not brushing at all, worldwide. At the same time,
chances are your dental professional will advise to Colgate-Palmolive says Colgate
use the product. The research behind the #1
claims is often conducted by asking this type of
toothpaste is the number 1 brand
leading questions to carefully selected samples of recommended by dentists.
dentists. Taking the risk that when all producers
share such statements, it might leave consumers
confused and perhaps even sceptical.
Origin
Sometimes, numbers tell a more convincing story than
words and pictures. Marketers often rely on quantitative
evidence like rankings and research statistics to back up the
qualitative claims that can’t be proven statistically.

One of the last cigarette ads claiming a doctor’s

endorsement, this 1954 ad in Life magazine showed
Hollywood star Fredric March making this assertion after
having read the letter written by a “Dr. Darkis” that was inset
into the advertisement. Dr. Darkis explained in this letter that
L&M filters used a “highly purified alpha cellulose” that was
“entirely harmless” and “effectively filtered the smoke.”
Darkis was not a physician, but a research chemist.
 False Testimonials
● Any testimonial must be true, failing which appropriate actions can be
taken by ASCI and under the Consumer Protection Act 1986.
● No restrictions on Product Demonstrations

● Businesses use customer testimonials to add credibility to the products

and services they offer. Consumers often read reviews and testimonials
from other customers to gauge their satisfaction with a product or
service. Using fake testimonials, such as ones written by employees or
altering real customer testimonials, is a type of false advertisising
Fake testimonials are considered false or deceptive
advertising—and therefore against the law—for several
reasons. First, they are not based on a real customer’s
experience, which a testimonial must be. Second, it misleads
the customer. Claiming a happy customer exists when the
don’t is misleading in itself, but whatever the fake testimonial
claims is also misleading. Third, it encourages customers to
spend money on a product or service they otherwise might
not, thereby financially defrauding the customer, which is an
especially notable offense for the FTC.
Reviews and testimonials on sites like Google, Yelp, and Amazon can
go a long way towards increasing a businesses’s popularity. Some
business owners have been tempted to create false reviews on these
sites. Not only is this practice forbidden by the FTC, but these
websites also take a hard stance against it.

Many of the same laws which make fake testimonials illegal also
make paid testimonials illegal. There are some differences, however,
since paid testimonials can be based on real customer experiences.
● Made by a real customer or user of the product or service
● Based on a real user’s experience
● Be an accurate description of expected or normal results
● Not influenced by money, gifts, or publicity unless it is clearly disclosed
● Not influenced by a familiar or business relationship (such as
employer-employee)
● Not edited or altered so to change the message
BEFORE/AFTER
“An advertisement for a weight-loss product
features a formerly obese woman. She says
in the ad, ‘Every day, I drank 2 WeightAway
shakes, ate only raw vegetables, and
exercised vigorously for six hours at the
gym. By the end of six months, I had gone
from 250 pounds to 140 pounds.’ …
Because the endorser clearly describes the
limited and truly exceptional circumstances
under which she achieved her results, the
ad is not likely to convey that consumers
who weigh substantially less or use
WeightAway under less extreme
circumstances will lose 110 pounds in six
months.
Although there has been no reported decision in Australia concerning
astroturfing, in 2011 the ACCC issued a $6,600 infringement notice on
Citymove Pty Ltd (Citymove), a removalist company, for publishing false
customer testimonials on a website hosted by it. The testimonials were
misleading as they purported to be testimonials prepared by genuine
consumers when this was not the case. They were instead copied from
an unrelated review website, and details such as the consumer name,
removalist company and star rating were then altered and the review
published on the host website. The host website included a statement
that the reviews were “authentic removal companies reviews”. The ACCC
alleged Citymove failed to ensure the accuracy of the website and
allowed the website to go live with knowledge that errors existed.
Citymove provided a court enforceable undertaking to the ACCC that it
would, among other things, not make false or misleading representations
that purport to be testimonials, and establish and implement a Trade
Practices Compliance Program.
It may also be misleading to claim that all reviews are genuine,
where the advertiser cannot assure itself of this. An example arose in
the UK in February 2012 where TripAdvisor, the online travel review
website, was censured by the UK advertising watchdog for claiming
that its user-generated travel reviews were “honest” and from “real
travellers”. Although TripAdvisor had procedures in place for
reviewers to sign and declare that their review was genuine and
honest, the UK Advertising Standards Authority concluded that this
did not prevent non-genuine or malicious reviews from being posted.
Due to the scale of TripAdvisor, they were unable to ascertain that
all reviews were in fact genuine. As many review sites are
anonymous or operate by pseudonym, it is relatively easy for a
fabricated review to be posted. Thus, it can be dangerous (and
misleading) to assert that all reviews are “genuine” without proper
checks or the ability to substantiate this.
 Disclaimers/Small-Print
Businesses can't rely on small print and disclaimers as an excuse for a
misleading overall message. For example, an advertisement states that
a product is ‘free’ but the fine print indicates some payment must be
made.

If your business needs to qualify its advertisements, make sure the

qualifying statements are clear and prominent so that consumers know
what the real offer is.
More...
All disclaimers and disclosures should be in clear, simple language so that
viewers can’t miss or misunderstand your message. For example, use the #ad
tag or a short statement like “This product was sent to us for review purposes”
or “This review was funded by [Company].”

For example, a claim that states ‘Joe’s coffee was voted best
coffee in Australia*’. The asterisk may link to a disclaimer
stating “from a poll conducted in 2013 in the Pyrmont area
amongst age group 18-25”.
What to do?
When determining whether you disclaimer is effective enough, you should consider:

-where you have placed the disclaimer displayed;

-how obvious it is;

-the wording of the disclaimer;

-how strong the claim is and whether it overrides the statement in the advertisement;
and

-when you made the disclaimer.

Can't help - E.g. For example, someone driving down a highway
who sees a billboard is unlikely to be able to
stop to read the fine print. So, if you are
● free; planning on using outdoor advertising, you
● cost-price; should not rely on disclaimers.

● cost-price plus $5; Further, when it comes to TV and radio

advertisements that have limited time,
● new; voice-overs that are too quick or too quiet are
● cheapest; unlikely to properly outline any disclaimers.
● sale; and
● discount. For example, if a consumer sees that they
can win a free trip, they will not anticipate
paying any costs for it. Instead, they are
likely to assume that the trip covers flights,
accommodation and any other significant
costs.
1. Prominence: is the fine print big
enough for people to notice and
read?
2. Presentation: is the wording and FTC’S 4
format easy for people to understand? PRONG
3. Placement: is the fine print where TEST!
people will look?
4. Proximity: is the fine print near the
claim it qualifies?