NAD has frequently held that whether a superlative like “best” requires substantiation depends on whether the superlative is linked to attributes that can be measured. For example, in a case involving NyQuil’s “best sleep” claims, NAD stated that “although claims of general superiority may constitute puffery, NAD has consistently concluded that linking a general claim to a specific product attribute may result in the need for substantiation.”

That decision suggests that if a superlative is not linked to a specific and measurable attribute, it is more likely to be deemed puffery. We’ve seen that theme echoed in a number of other decisions, and advertisers have often taken deliberate steps to keep their “best” claims general so that they could take advantage of a “puffery” argument in the event of a challenge.

In a recent case, NAD considered Xfinity’s invitation to consumers to “choose from the best devices on the best network.” NAD noted that the “best network” claim was “broad and unqualified” and that “nothing in the context surrounding the claim narrows the claim or gives any indication of what ‘best’ means.” Because of that, the “claim could convey a range of superiority messages” which Xfinity was not able to support.

While previous NAD decisions suggest that by not linking the word “best” to something measurable, the word could be deemed puffery – in which case, an advertiser would not be required to have substantiation – this decision arguably suggests that by not linking the word “best” to something measurable, the word could convey a range of claims – in which case, an advertiser would be required to have substantiation for those claims.

How do we resolve this apparent dichotomy? It seems that Xfinity may not have made a puffery argument, so advertisers trying to make a puffery argument in future cases may attempt to distinguish the Xfinity decision on those grounds. Hopefully, the decisions in those cases will shed more light on NAD’s approach. In the meantime, we have to wonder whether this case – like others we’ve written about – will continue to narrow the scope of puffery.

Anheuser-Busch filed a challenge using NAD’s Fast-Track SWIFT process, arguing that the videos falsely disparage Michelob Ultra and other light beers by claiming that consumers find them to taste like water. Molson Coors pointed out that no competitors were named and the tagline was simply “a subjective opinion about what beer should and should not taste like, which cannot be objectively proved or disproved.” In other words, mere puffery “because it is not sufficiently specific and material enough to create expectations in consumers.” But NAD didn’t agree. It deemed Coors’ claim measurable and objective and found it to be unsupported by evidence.

Hmmm. Do consumers really expect Molson Coors to have a well-designed test establishing that some unnamed light beers taste like water? Such jabs have long been a staple of American advertising. Isn’t this akin to Wendy’s iconic “Where’s the beef” campaign? Or Dunkin Donuts’ slogan, “friends don’t let friends drink Starbucks”? These taglines were never controversial. And yet, one can only imagine the conversations that might ensue if these slogans crossed NAD’s desk today. Wendy’s might be asked to provide to-the-millimeter measurements of competitors’ burger-to-bun ratios. And Dunkin might be asked to supply a robust, geographically diverse, well-conducted survey of three hundred “friends.”

Anheuser-Busch is no doubt enjoying its “win” in this case, but this decision sure doesn’t feel like a victory for the advertising industry as a whole. As we’ve noted before, puffery’s protective ambit seems to be shrinking by the day.

So how did NAD justify this decision? It insisted that knocking the taste of a competing product is a support-requiring claim. NAD pointed to its Traeger case. In that case, Traeger, a manufacturer of wood pellet grills, expressly stated that food prepared with propane “tastes like gas” or (to some ears) “tastes like ass” more than one dozen times within the first 30 seconds of the commercial. Express claims. And the evidence in the record demonstrated that virtually all gas grills sold in the U.S. are CSA certified and meet the requirement of ANSI standards mandating complete combustion of the fuel. In other words – food cooked with propane gas is odorless. It does not taste like gas. The express claim was false and targeted at a real, specific segment of the industry: propane grills. Molson Coors, to the contrary, pegs its “water” joke to the imaginary category of “Extremely Light Beer.”

We also have a procedural gripe. NAD’s SWIFT queue has been limited to single, well-defined issues involving express claims that do not require the assessment of complex substantiation. The decision frames the issue as an implied claim, which was outside the scope of a SWIFT challenge (at least until last week’s surprising announcement, without input from interested parties, that the SWIFT scope would be expanded to include implied claims). According to NAD:

The Challenger argued that the videos falsely disparage Michelob Ultra and other light beers by claiming that consumers find them to be tasteless or having a taste similar to water. The Challenger argued that the videos go even further than false disparagement into the realm of ash canning or false denigration by communicating that competing light beers are of little or no value to drink and only good for pouring out of the can to shower oneself as with water.

How is this not an implied claim? The ad does not mention Michelob Ultra or any other light beer; it merely identifies a negative product attribute well-known to beer drinkers – watery taste – which occurs with some beers when they are diluted with water to reduce caloric and alcohol content or are just badly brewed. As an implied claim, this should have been in the Standard Track. Molson Coors would have had time, if it chose to do so, to develop extrinsic evidence to support its contention that no objective claims was being made, after it arrived at the surprising realization that NAD might believe that such evidence would be necessary.

NAD really had to contort itself here to keep this one in the SWIFT queue, asserting that the only issue under consideration is whether the express claim light beer shouldn’t taste like water. It should taste like beer is truthful and accurate. It is no wonder Molson Coors did not attempt to substantiate this “claim” – it is difficult to conceive how you would go about doing it.

Is it possible that “one reasonable interpretation” of the advertisement was the Michelob Ultra tastes like water? Maybe, but we will never know. NAD did not consider the issue. If it did, it seems likely that only an insignificant minority of consumers would take-away that message, and that would mean it is not deceptive.

NAD rightfully looks to standards established by the Federal Trade Commission when it considers whether advertising is truthful and accurate. The “reasonable consumer” standard is codified in the FTC’s Policy Statement on Deception. There, the FTC explains that, for a representation to be deceptive, it must be “likely to mislead reasonable consumers under the circumstances.” The Deception Policy Statement further provides that “[a] representation does not become ‘false and deceptive’ merely because it will be unreasonably understood by an insignificant and unrepresentative segment of the class of persons to whom the representation is addressed.” Rather, the advertisement is deceptive only when at least a “significant minority” of consumers take away a deceptive message.

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The Molson Coors decision will be appealed, so we will see if the current course will be corrected. If not, advertisers will need to anticipate an NAD that is highly suspicious of puffery, willing to find express claims in claims that are implied at best, and ready to accelerate consideration of evidence of meaning under its new SWIFT procedures. All of this suggests a playing field tilted even further against the Advertiser in favor of the Challenger (in 2022, only 1 of 62 competitive challenges at NAD resulted in a finding that the claims at issue were completely substantiated). This could lead Advertisers to consider more fully whether to participate in voluntary industry self-regulation in the first place, which would be an unintended and unfortunate consequence.

In an infomercial for its Shark HyperAir hair dryer, SharkNinja claimed that “only with Shark Intelligent IQ Stylers can you get Saturday night hair every day of the week.” Dyson argued that the claim was misleading because it suggests that only HyperAir users can routinely achieve styling results that other products’ users can attain only by investing substantially more time. SharkNinja argued that the claim was puffery because “Saturday night hair” is not a measurable attribute and that no reasonable consumer would understand that to be a comparative claim.

As with most cases involving puffery, it’s important to zoom out and consider the claim in context. (Look at the entire hairstyle, rather than the individual hairs, if you will.) During the course of the 30-minute infomercial, SharkNinja makes various comparisons to other hair dryers, including specific references to Dyson’s own Supersonic hair dryer. NAD determined that although “Saturday night hair” may be puffery on its own, in the context of the infomercial, “it conveys a comparative superior performance message because the infomercial states that only the Shark Intelligent IQ Styler can achieve that result.” Accordingly, NAD recommend that SharkNinja modify the claim.

The case covers a lot of ground, but we wanted to start here because this topic – puffery, more so than hair styles – comes up a lot in our conversations with clients. Context is always critical. Phrases that come across as subjective (and thus require no substantiation) when standing on their own can come across as objective (and thus require substantiation) when combined with references to competitors. Hair styles may come and go, but this rule has stood the test of time, so comb through your claims carefully.

Goya advertises that its Excelsior brand pasta is “La Pasta Favorita de Puerto Rico.” In some cases, that tagline is accompanied by other superlatives, such as statements that the pasta is “delicious” and the “best for your family.” A competitor challenged these claims at the NAD, demanding that Goya provide substantiation. Pointing to the Eighth Circuit case, Goya argued that its claims were merely puffery and that it didn’t need any proof. The NAD disagreed.

Starting with a dictionary, the NAD noted that “Favorite” is defined as a “person or thing that is preferred to all others of the same kind or is especially well liked.” Moreover, by referencing “Puerto Rico,” NAD determined that Goya had clearly defined the market in which the preference claim applies. Accordingly, NAD found that Goya’s tagline could reasonably convey a message that Excelsior is preferred to all other pasta brands in Puerto Rico.

Goya pointed to ads in which its tagline was used in conjunction with “fanciful superlatives,” such as “delicious,” which cannot themselves be measured. But the NAD noted that the use of those superlatives didn’t change its analysis. Highlighting those attributes could suggest that they are the reasons “why consumers prefer Excelsior pasta and contributes to the net impression that consumers in Puerto Rico prefer Excelsior to all other brands.”

Claims that a brand is the “favorite” must generally be supported by sales data or consumer survey data. Because Goya didn’t have either, the NAD recommended that Goya stop using the tagline, both online and on product packages.

This case illustrates why the line between objective claims and puffery can be blurry. It also suggests that if a company determines that there is risk associated with a claim, it should think carefully about where it makes that claim. While removing claims online is can be relatively straightforward, removing claims on product packages is a lot more complicated and burdensome.