Key Takeaways

  • Puffing in law refers to exaggerated, subjective claims used in marketing that are generally not legally actionable.
  • Puffery is legally distinct from false advertising, which involves objective, verifiable falsehoods.
  • Courts typically allow puffing if it represents opinions rather than factual misrepresentations.
  • Real estate and consumer product sales are common contexts where puffing is scrutinized.
  • Knowing when puffing crosses the line into fraud or misrepresentation is crucial to avoid legal issues.

Puffing business law refers to the act of exaggerating in order to sell a service or product and the legal ramifications involved. Most exaggerations in advertising go unchallenged, but there are cases in which the law can become involved.

What Is Puffing?

Simply put, puffing happens when a product is said to be better than it actually is. It isn't an outright lie, because puffing is based in the truth, but stretched. Advertisers will take the best parts of a business, service, property, product, or otherwise and blow them up to appear bigger than they actually are to make a profit. This is also called inflating the truth.

When puffing does involve a lie, legal action can be taken against the company. For example, you cannot advertise that a specific celebrity frequents your store if they've never been there, but you might advertise that celebrities frequent your store, even if only two have stopped by in the last five years. The latter statement is considered puffing.

Most people expect some level of puffing to happen during any sales transaction, so there usually isn't much on which to build a lawsuit. However, if the exaggeration takes things beyond the truth, there is sometimes ground for a case of truth in advertising.

Puffing vs. Misrepresentation in Law

While puffing involves exaggerated but subjective claims, misrepresentation involves false statements of material fact intended to deceive the buyer. In legal disputes, courts often draw a clear distinction between the two:

  • Puffing: Statements like "This is the best pizza in town" are considered opinions and are not typically grounds for legal action.
  • Misrepresentation: A claim such as "This car has never been in an accident" when it has, is a factual statement and may constitute fraud or misrepresentation.

In real estate, for example, describing a house as having "a stunning view" is puffing, but saying it has a new roof when it doesn’t is misrepresentation. Buyers relying on factual inaccuracies may have legal remedies unavailable in cases of puffery.

What Is Puffery?

Puffery is simply another side of the puffing coin. The puffery is the ever-present tone of most sales interactions. Once you're used to certain sales environments, the puffery can become totally invisible.

Puffery is not the same as false advertising. Consumers are rarely considered duped by puffery, because it's usually assumed in different types of advertising and sales testimonials. The Federal Trade Commission views puffery as the exaggerated quality of a service or product. The idea is that the business is "puffing up" their products to make them more appealing.

One way that puffery is considered acceptable and not a case of false advertising is because it's usually in the form of subjective opinions.

Some sample wording includes:

  • "The best coffee in New York."
  • "Top of the line service."

When a coffee shop claims that it's the "best coffee in New York," they are saved by the fact that what is considered "best coffee" is a subjective concept. As long as claims about being the "best" or "number one" aren't said to be official or backed up by an official source, they are mostly ignored.

For instance, a car company can claim that their truck is the "best looking pickup on the market," but they cannot say that it's rated as the "best pickup" by J.D. Power unless it actually is. Otherwise, they could be sued for false advertising. Basically, most people don't think that a coffee shop has the best coffee in the state just because it says that on a sign, they recognize it as puffery even if they don't call it exactly that.

Legal Doctrine and Consumer Expectations

Courts have long recognized puffing as a traditional aspect of sales, and the Federal Trade Commission (FTC) generally exempts puffery from enforcement actions because such statements are unlikely to mislead a “reasonable consumer.” However, businesses should be careful, especially when advertising to vulnerable audiences or in regulated industries.

Courts consider several factors when determining whether a statement is puffery or a deceptive claim:

  • Specificity of the statement (e.g., vague vs. precise).
  • Verifiability (e.g., opinion vs. fact).
  • Consumer interpretation (e.g., would a typical buyer rely on the claim?).

Additionally, puffing is more likely to be legally tolerated if:

  • The claims are not quantifiable.
  • The language is clearly hyperbolic or promotional.
  • There is no implied warranty.

Is Puffing Legal?

In most cases, puffing is legal. Even when consumers don't like it, there usually isn't much they can do about it legally. Even in a sales contract, the practice of one party exaggerating their position, expectations, or predictions for the success or value of something being sold is permissible by law.

Sometimes it's not clear whether or not you have a case, so if you believe you've been injured through false advertising, you'll want to get a lawyer involved. You can contact an experienced contract lawyer and explain the situation. They will likely be able to tell you the strength of your case.

Puffery isn't seen as a guarantee or warranty on the part of the seller, so they can't be held liable if the customer is disappointed. If you don't agree that your local coffee shop has the best coffee in the state, you cannot sue them based on their statement. There needs to be a basis for liability in order to have a legitimate case against a seller.

When Puffing Becomes Legally Risky

While puffing is generally lawful, it becomes problematic under these circumstances:

  • When claims are quantifiable and provably false (e.g., "lasts 10 years" when it doesn’t).
  • When exaggerations influence a consumer’s purchasing decision based on assumed facts.
  • When puffery involves omission of key details that would materially change the consumer's understanding.

Sellers in real estate, for instance, have been found liable when their "puffing" concealed property defects. Courts may also find puffery unlawful if the buyer can prove they reasonably relied on a misleading statement to their detriment.

To minimize legal risk, businesses should:

  • Use disclaimers when making promotional claims.
  • Avoid statements that could be construed as warranties.
  • Ensure that all factual claims are accurate and substantiated.

What Is False Advertising?

False representations or fraudulent representations are usually what people are referring to when they talk about "false advertising." This practice is punishable by law and is different from puffing or puffery. Lawsuits can be brought against companies for false representation by consumers themselves or by the Federal Trade Commission. A company's competitor can even bring suit against another if they find falsified information in their advertisements.

Real-World Examples of Puffing vs. Deception

Examples of puffing that are usually lawful:

  • "Our burgers are the juiciest in the city."
  • "World’s best customer service."
  • "This software is the future of productivity."

Examples that may constitute false advertising:

  • "Clinically proven to cure migraines" (if no clinical evidence exists).
  • "100% organic ingredients" (if synthetic additives are used).
  • "This home has never had water damage" (when records show past flooding).

Puffing in real estate is especially prone to scrutiny. Saying a neighborhood is “quiet and friendly” is puffery. Claiming a house is 2,000 square feet when it's 1,600 is a misrepresentation and could lead to legal consequences.

Frequently Asked Questions

  1. Is puffing in law always legal?
    No, puffing is generally legal only when it involves subjective, non-verifiable opinions. It becomes illegal if it includes false, factual assertions.
  2. What is the difference between puffery and fraud?
    Puffery involves exaggerated opinions, while fraud involves knowingly making false factual statements to deceive.
  3. Can a seller be sued for puffing?
    Not typically. However, if the puffing crosses into misrepresentation or deceit, legal action may be possible.
  4. How does puffing apply in real estate transactions?
    Puffing in real estate might include praising a home’s aesthetics, but factual errors—like incorrect square footage or illegal renovations—can lead to liability.
  5. What should businesses do to avoid crossing the line?
    Avoid making specific, verifiable claims unless they can be substantiated. Use disclaimers, and consult legal counsel for marketing review.

If you need help with puffing business law, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.