MARKETERS FEND OFF SHIFT IN RULES FOR AD PUFFERY;REJECTED CHANGE PUT BURDEN OF PROOF ON ADVERTISERS

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Marketers' battle to retain the sometimes astounding, stupendous and amazing claims made in advertising has been given a boost in the latest proposed revision to the Uniform Commercial Code.

The revision switches the burden of proof to consumers from advertisers in cases pertaining to whether certain claims were meant to be taken as promises.

At issue is puffery, the ability of advertisers to make bold statements-such as the current tagline for Procter & Gamble Co.'s Fol-ger's instant coffee, "The ultimate one cup coffee machine"-without being sued by consumers because the claims may not literally be true.

SHIFTING THE BURDEN

Advertisers received a scare last summer when drafters of a revised commercial code proposed changing current law; the change would have placed the burden on advertisers, implying that puffery creates express warranties for which marketers are responsible.

For example, a consumer once tried to sue American Honda Motor Co. because, contrary to the slogan, he said he didn't meet the "nicest people" while tooling around in his Civic.

A court eventually threw the case out.

But with last summer's proposed revision, it would have been up to Honda to prove the company wasn't promising the man really would meet the nicest people.

"The revision now states that the buyer must prove that an affirmation of fact [as opposed to puffery] was made, that the buyer was aware of the advertisement, and that the affirmation of fact became part of the agreement with the seller," said Jeffrey Edelstein, a partner in the law firm of Hall Dikler Kent Friedman & Wood.

Mr. Edelstein is the point person for the American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers and State Advertising Coalition in getting the advertising community's voice heard by the committee of the National Conference of Commissioners on Uniform State Laws drafting the revised commercial code.

"This is a big victory, a substantial improvement over the original revision," he said.

ANOTHER CONCERN

But Mr. Edelstein does have an important concern. The proposed language refers only to consumers who buy products from a third party.

"What about direct response and dealer advertising?" asked Mr. Edelstein. "Is that advertising treated the same? I would certainly hope and expect so."

He is seeking a clarification on that point.

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