Is it Safe to Call Something Safe? The Law of Puffing in Advertising

Abstract

American law has for a long time condoned the use of exaggerated claims in advertising. Though the rules of law governing these types of claims have not been explicitly reversed, according to some legal thinkers, the attitude of the law applying these rules has over the years dramatically changed. Because the stakes are usually high in cases involving products liability, the changing attitude of the law has some of the most important effects in such litigation. This article examines one of the basic rules whose aim is to allow the making of exaggerated claims—the puffing defense. It describes the current status of the law regarding this rule and shows how the rule has been applied in products liability litigation. Through an examination of these cases, it argues that the making of an exaggerated claim is not good business practice and may easily serve as the grounds for recovery by a plaintiff injured by a defect in a product about which such an exaggerated claim of safety was made.