IMS Pet Industries makes duck jerky dog treats. When a woman's dog got sick after eating the treats, she sued, alleging that IMS made various misrepresentations in the packaging and marketing of the treats.
In considering a motion to dismiss in connection with various breach of warranty claims, the United States District Court for the District of New Jersey considered whether any of the IMS marketing claims were non-actionable puffery.
Not surprisingly, the court said statements on packaging such as "no artificial colors," "no by-products," and "inspected and independently tested" were all actionable.
On the other hand, the court held that the statements on the company's website, "that's why we go to great lengths to maintain the quality and consistency of our products" and "best treats for your pet," were puffery. Here, the court said that these statements were "affirmations merely of the value of the goods or statements purporting to be merely the seller's opinion or commendation of the goods."
It's often difficult to tell whether a statement is an advertising claim requiring substantiation or simply non-actionable puffery. The first step, though, is considering the context in which the statement is made. Will consumers understand the statement, in the specific context in which you are using it, to be making objective claims about the product's attributes or performance that will make a difference to them when making a purchasing decision? Or will the statements simply be understood to be the advertiser's own subjective opinion about why you should buy the product?