While the jacket might be puffy, the claims weren’t puffery. The NAD provides guidance on distinguishing performance claims from puffery.
The National Advertising Division is already gearing up for winter, with a recent decision on the tagline “Lightest. Warmest. Guaranteed” for down jackets marketed by Eddie Bauer. Eddie Bauer, LLC, Report #5875 (NAD Case Reports ___). The decision provides useful guidance on the line between puffery and objective claims that require substantiation.
As part of its routine monitoring program, the NAD reviewed the following advertising claim from Eddie Bauer:
“The New MicroTherm StormDown Jacket. Lightest. Warmest. Guaranteed.”
Eddie Bauer contended that its “lightest” and “warmest” claims were puffery (i.e., subjective statements of opinion) and therefore did not require substantiation. The NAD disagreed because consumers could reasonably understand these claims to promote the superiority of Eddie Bauer’s jacket as to weight and warmth. Specifically, it found that the claims were “objectively measurable and refer to specific attributes that suggest that this jacket is comparatively, measurably superior to other products.” The NAD further found that these claims were unqualified superiority claims that require comparative testing data against a substantial portion (normally 80%) of competitive products. Since Eddie Bauer did not have such substantiation, the NAD recommended that Eddie Bauer discontinue these claims.
However, the NAD took a very different view about the “Guaranteed.” portion of the advertising claim. As any Eddie Bauer fan knows, all of its products are backed by the company’s unconditional guarantee: “Every item we sell will give you complete satisfaction or you may return it for a full refund.” The guarantee is featured on hangtags, the company’s website and in its catalogs, and has been part of the company’s identity for almost 100 years. Eddie Bauer therefore argued that all reasonable consumers would understand its “Guaranteed.” claim to refer to its legendary and well-known product guarantee. Out of context, the unknowing consumer might think that the guaranteed claim referred back to the warmest and lightest claims, but the NAD agree with the advertiser that context (and history) is king in this situation.
