On January 31, 2013, the National Advertising Division of the Better Business Bureau (NAD) announced a decision holding that claims made in trademarked phrases are subject to advertising laws and require substantiation. The NAD also held that while certain claims might constitute puffery on their own, when displayed in the context of other claims about the product, they are superior performance claims and the advertiser must have a reasonable basis for those claims.

The case involved certain trademarked phrases used by Envirocon Technologies (Envirocon) to promote its cleaning products. Envirocon argued that some of the phrases in question, such as "Outshines the competition," were trademarks and puffery, so did not require substantiation. The NAD held that when a trademark appears as an advertising claim, the advertiser must have a reasonable basis for that claim. The NAD also held that while a phrase may constitute puffery on its own, when displayed in the context of other claims about the product, such as "removes the toughest spots and film while keeping your dishwasher sparkling clean," it was a superior performance claim and the advertiser must have a reasonable basis for the claim.

The NAD recommended that Envirocon discontinue use of any unsupported claims. Envirocon agreed to comply with the decision.

In light of this decision, companies and advertisers should review any trademarked promotional claims and claims of puffery used in their promotional materials to ensure that:

For more information on comparative advertising, see Practice Note, Comparative Advertising Law in the US.

For more information on advertising laws in the US, see Practice Note, Advertising: Overview.