The line between mere puffery and an actionable advertising claim is often quite blurred. Recently, the Pennsylvania Supreme Court had the opportunity to clarify the distinction when it reversed a lower court's dismissal of a lawsuit, saying the court had failed to adequately consider the context in which the advertiser's statements were made. 

In Commonwealth v. Golden Gate National Senior Care,  the Pennsylvania Attorney General sued more than two dozen nursing homes and their parent companies, alleging that they made false and misleading statements about the nature and quality of the care that they provide.  For example, the Pennsylvania AG alleged that they made the following false claims: 

  • “Snacks and beverages of various types and consistencies are available at any time from your nurse or nursing assistant."
  • “Clean linens are provided for you on a regular basis, so you do not need to bring your own.”
  • “A restorative plan of care is developed to reflect the resident’s goals and is designed to improve wellness and function.”
  • “A container of fresh ice water is put right next to your bed every day, and your nursing assistant will be glad to refill or refresh it for you.”

In a pretty surprising decision, the lower court dismissed the lawsuit on the grounds that the statements were non-actionable puffery because the court felt that the statements were so broad and vague or merely expressive of intent.  

On appeal, the Pennsylvania Supreme Court reversed, holding that these statements were not, in fact, puffery.  The court wrote, "Where the impression created by the statement is one of exaggeration or overstatement expressed in broad language, it may be deemed non-actionable puffery."  The court explained that there are two basic categories of puffery -- (1) hyperbolic boasting or bluster that no reasonable consumers would believe to be true and (2) claims of superiority over a competitor's product that consumers understand are not to be taken literally.  The court said that, “Determination of whether a statement is puffery requires consideration of the overall impression of the statement and the context in which it is made.” 

Here, as expected, the court concluded that because the statements concerned essential items for residents of the nursing homes, there was “no reason to think that a consumer would not take [the] statements seriously.”