Best Guesses for “Best” Claims
If you want to advertise that something is the “best,” do you need substantiation? Or can you rely on a puffery argument? Although the answer depends on context, one paragraph in a recent NAD decision seems to conflict with longstanding precedent.
NAD has frequently held that whether a superlative like “best” requires substantiation depends on whether the superlative is linked to attributes that can be measured. For example, in a case involving NyQuil’s “best sleep” claims, NAD stated that “although claims of general superiority may constitute puffery, NAD has consistently concluded that linking a general claim to a specific product attribute may result in the need for substantiation.”
That decision suggests that if a superlative is not linked to a specific and measurable attribute, it is more likely to be deemed puffery. We’ve seen that theme echoed in a number of other decisions, and advertisers have often taken deliberate steps to keep their “best” claims general so that they could take advantage of a “puffery” argument in the event of a challenge.
In a recent case, NAD considered Xfinity’s invitation to consumers to “choose from the best devices on the best network.” NAD noted that the “best network” claim was “broad and unqualified” and that “nothing in the context surrounding the claim narrows the claim or gives any indication of what ‘best’ means.” Because of that, the “claim could convey a range of superiority messages” which Xfinity was not able to support.
While previous NAD decisions suggest that by not linking the word “best” to something measurable, the word could be deemed puffery – in which case, an advertiser would not be required to have substantiation – this decision arguably suggests that by not linking the word “best” to something measurable, the word could convey a range of claims – in which case, an advertiser would be required to have substantiation for those claims.
How do we resolve this apparent dichotomy? It seems that Xfinity may not have made a puffery argument, so advertisers trying to make a puffery argument in future cases may attempt to distinguish the Xfinity decision on those grounds. Hopefully, the decisions in those cases will shed more light on NAD’s approach. In the meantime, we have to wonder whether this case – like others we’ve written about – will continue to narrow the scope of puffery.