Can Puffery Be Used In Medical Advertising?
What is 'Puffery'?
‘Puffery’ is an old legal term that is used to define a statement that over-exaggerates the characteristics of a product or service. It is used to describe a slogan or statement that is “generally understood” to be hyperbole and a claim that would not be accepted as fact or relied upon (or believed). It is:
a “claim” that can neither be proven nor disproven
is usually boastful and subjective.
However, the use of puffery in advertising does make it hard to draw the line between what is obviously an over-exaggeration, and therefore a customer wouldn’t be expected to rely on it versus false advertising.
Examples of 'puffery' in advertising:
“Feels like you’re sleeping on a cloud.” “It’s a meal fit for a king.” “It’ll blow your mind away.” “World’s best coffee.”
The above slogans are all 'puffery' - we don’t know what it’s like to sleep on a cloud. Who knows what a meal fit for a king is? Blow your mind is obviously not to be taken literally, and there is no way of substantiating if you’re serving the world’s best coffee.
Using puffery can land advertisers in hot water:
We’ve all heard the slogan “Red Bull gives you wings,” and it would be fair to say there is an implied understanding that drinking Red Bull won’t physically give you wings – as that is obviously impossible right? Not so according to one plaintiff – Red Bull was sued in late 2014 on the basis that this slogan did not lead to improved athletic performance. The plaintiff claimed that using this slogan “suggests” drinking Red Bull leads to improved performance and it’s a “claim” that cannot be supported by evidence. The outcome? Each claimant was entitled to a US$10 voucher or US$15 worth of Red Bull products. This example highlights why the use of puffery in advertising is potentially fraught with danger, as it’s highly subjective and depends on how people interpret the claim or statement.
So, should medical and health practitioners use puffery?
While using a slogan such as “you’ll walk out of our clinic feeling 8 feet tall” – meets the puffery definition as it’s physically impossible to achieve, health and medical practitioners need to be very mindful of their obligations to remain fact-based. Under the AHPRA advertising Code, health and medical practitioners have a stringent obligation to advertise the facts and not advertise in any way that may unnecessarily encourage patients to seek treatment they may not need. On this basis, the statement “you’ll walk out of our clinic feeling 8 feet tall” could be considered to induce people to seek treatment they don’t require. Remember, the test of reasonableness in medical advertising has a very low threshold. As a medical practitioner, you're often dealing with people who are vulnerable or not capable of making fully informed decisions about their medical care. This means you need to consider how your marketing statements will be perceived by all types of patients. The question you need to ask is - is it possible, however remote, that a vulnerable patient could interpret our “puffery” as a true and factual offering of our services?
What would I do if I was a medical practitioner?
With this being such a grey area, I suggest steering clear of any statements of mere puffery, no matter how benign. While using puffery can be fine for certain industries – medical and health professionals are best advised to stick to the facts. In our next article, we will be talking about AHPRA regulations and do's and don'ts - to become a member of our mailing list - you can register here.
Contact us if you would like to have more information. Our lawyers at You Legal will be happy to assist you in whatever way we can.
* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.