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Litigation: Product testing and puffery collide in new false advertising suit

Jeweler’s claims tread the line between exaggeration and misrepresentation

A new false advertising action filed by jewelry retailer Sterling Jewelers Inc. in the Northern District of Ohio (Sterling Jewelers Inc. v. Zale Corp.) presents a unique question about the line between puffery and misleading advertising claims, specifically claims based on product testing. The defendant in the case, Zale Corporation (Zales), also a jewelry retailer, recently began promoting its line of “Celebration Fire” diamonds as “The Most Brilliant Diamond in the World.” Some of its advertisements explain that the claim is “based on independent laboratory testing conducted in 2012 of round-cut diamonds from select leading national jewelry store chains.” 

Sterling challenges the truth of Zales’s claims, arguing in part that because the laboratory tests were limited to “diamonds from select leading national jewelry store chains,” Zales necessarily did not test all of the diamonds “in the world.” According to Sterling, “Zales’s claim that it has proven its Fire diamonds to be more brilliant than any other cut of diamond in the world can be true only if its Fire diamonds have been tested against every other cut of diamond in the world.”

Sterling also asserts that because the brilliance of a diamond is a recognized property within the jewelry industry and is capable of being objectively measured, Zales’s claims are not mere puffery—i.e., an exaggerated, subjective opinion about a good or service. Typically, the vaguer a statement is with respect to a product’s specific characteristics, the more likely the statement is to be puffery. For example, courts routinely find that a general claim to be the “best…in the world” constitutes puffery. Statements amounting to puffery are not actionable under false advertising law because consumers recognize them as such, and are therefore not deceived or misled by them.

Certainly, the fact that Zales singled out a specific product characteristic—the brilliance of its diamonds—distinguishes its advertising claims from most common types of puffery. Zales’s own reference to its laboratory testing also indicates that it intended to go beyond a subjective opinion in describing its diamonds as the most brilliant in the world. Yet, the phrase “in the world” is one that often appears in statements of puffery and some courts have, in fact, explained that the phrase is precisely the sort of exaggerated generalization that consumers do not interpret literally. As a result, Zales’s advertising claims are not easily categorized.

While the court has yet to weigh in on the issue, the case raises a number of questions about how false advertising law should apply to advertising claims that may contain both puffery and non-puffery. If the court or jury were to treat the entirety of Zales’s advertising claims as non-puffery, for example, Zales’s failure to test its diamonds against all other diamonds in the world could be fatal. But are consumers really deceived on this point? Do they truly expect Zales to have tested every other diamond in the world? Is that even possible? At the same time, it makes little sense to treat the entirety of Zales’s advertising claims as mere puffery.  

Instead, Zales’s claims would seem to require a nuanced approach, one that distinguishes between puffery and non-puffery. Even this approach presents challenges, however. For example, if Zales need not have tested every diamond in the world in order to support its claims, how many did it need to test, and which ones? In the end, the issues of consumer deception and puffery both present questions of fact, and there will likely be no bright line to draw. 

Regardless of the outcome, this case is a helpful reminder of the need to balance effective, consumer-friendly marketing jargon with careful phrasing that lowers the risk of a false advertising suit. Advertisers should be aware of the inherent tension present in an advertising claim that both relies upon product testing and uses puffery. More specifically, they should be aware of what terms and phrases in their advertising could be problematic if interpreted literally.

Contributing Author

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Travis McCallon

Travis McCallon is a partner in Lathrop & Gage LLP’s Kansas City office. He concentrates his practice on intellectual property counseling and litigation, primarily focusing...

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