The American Advertising Federation, Association of National Advertisers and others say possible changes in the Uniform Commercial Code will open the door to many more lawsuits by failing to clearly distinguish between puffery and objective claims.
"It would cripple the time-honored distinctions between advertising claims which are based in fact and those which are primarily persuasive," said AAF President Wallace Snyder in a Feb. 13 letter to the National Conference of Commissioners on Uniform State Law, which is working with the American Law Institute to draft new language in the code.
He suggested adoption of the new language would "be a gross disservice" to the advertising, marketing and business communities and to the public.
Dan Jaffe, ANA's exec VP-government relations, in a letter warned the proposed revision "would be a wholesale reversal of years of case law which could have very dangerous and costly implications for all advertisers."
The UCC isn't binding itself, but serves as a model for many states' commercial laws. A final proposal won't be out until 1997, after being approved by a board made up of members from the two groups working on the code.
A drafting committee, which met March 10 and 11 in Denver, softened the first revisions and called for language that more clearly defines the difference between puffery and product claims. Ad group spokesmen say they hadn't yet seen these revisions.
Supporters of the changes say marketers should have to support their advertising claims and that the consumers should not have to go through the current legal system's procedures of suing retailers to reach manufacturers.
"What the advertising people are interested in is being able to advertise and they are not so concerned about the consequences," said Amy Boss, a professor of law at Temple University in Philadelphia who sits on the drafting committee. "The amendments deal with a real situation of the claims made in advertising directly to the consuming public."
David Rice, a professor of law at Rutgers University's Newark, N.J., campus, wrote the committee a letter to discourage weakening a first draft of the new language.
"The ads are intended to influence people. If you make a statement of fact, than you can be held to it," he said.
Mr. Jaffe, however, said the lack of a clear definition of puffery in early drafts opens marketers up to all sorts of suits.