I often think that figuring out the courts’ and NAD’s position on whether a particular statement is puffery or a claim is almost a Talmudic exercise: it requires the most careful of parsing, with a firm knowledge of precedent.  And the exercise is a supremely important one, at least to advertising lawyers: if a statement is puffery, then no substantiation is needed; if it’s a claim, then it is.

NAD’s most recent contribution to puffery vs. claim exegesis is its decision in the challenge brought by KIND against its competitor in the snack bar as fuel space, CLIF BAR.  At issue were two statements in Clif Bar’s commercial that features athletes, including famous ones, engaging in a variety of active sports, like skateboarding, lacrosse, dancing and weightlifting. The challenged claim “The Ultimate Energy Bar” appears on screen and the voiceover states, “Let’s keep moving with the ultimate energy bar purposefully crafted with an optimal blend of protein, fat and carbs to keep you moving."  Kind argued that these two statements were not only claims, but claims of superiority against other energy bars.

NAD agreed.  It determined that while each statement, standing alone, “may convey a laudatory opinion constituting puffery,” together, they convey “objective, measurable messages that require substantiation.”  Further, while “ultimate” or “optimal” standing alone may be monadic, together they “could reasonably lead consumers to contrast the CLIF energy bars to other energy bars.”  In other words, the combination of “ultimate” and “optimal” not only makes a claim, but the claim it makes is one of objective superiority over other bars.  And that claim, according to NAD, was unsupported. Although Clif Bar provided a declaration from a registered dietician and nutrition consultant speaking to the benefits of carbohydrates during exercise and the value of the fats in the CLIF bars, it failed to provide any information about competitors’ bars or why “the CLIF energy bar’s blend is optimal or better than competitor’s energy bars for the activities depicted in the commercial.”  Accordingly, NAD recommended that the claim “The Ultimate Energy Bar” with “an optimal blend of protein, fat and carbs” be discontinued. Clif Bar agreed to comply.

Why does this matter?  In truth, when I read the press release for this case, I was a little surprised. Reading the Decision, I’m still a little surprised at the outcome. DO consumers really take away a message of actual measurable superiority from these statements, particularly when seen and heard in the context of a fast-moving spot filled with gorgeous athletes and high energy music?  There was no consumer perception evidence introduced in the case, so NAD was on its own in evaluating potential takeaway from the commercial. NAD apparently saw and heard a superiority claim. So, that’s really the lesson: the line between puffery and claim can be a very thin one, and one not necessarily so easy to divine in advance.  

Case Report #7069.