When “Bigger is Better” Isn’t Mere Puffery: NAD Clarifies When Claims Require Substantiation
by Alan Lowenthal
On November 30, 2023, The National Advertising Division (“NAD”) of the BBB investigated performance claims made by Royal Oak about their Super Size charcoal briquets. Royal Oak sells “Super-Size” briquets that are 50% bigger than the briquets sold by competitors. The object of comparison of its 50% bigger claim isn’t stated; however, the NAD found that consumers could reasonably understand the comparison to be against Kingsford (the competitor filing the challenge) since Kingsford Original briquets comprise a significant share of the charcoal briquet market. Thus, the NAD determined whether Royal Oak’s 50% bigger claim was accurate when compared with Kingsford Original briquets. Royal Oak also advertised “a bigger briquet is a better briquet”, and that their briquets “provide the best grilling experience” resulting in increased heat and burn time. Kingsford challenged these claims and demanded that Royal Oak provide adequate substantiation in support of them.
Royal Oak contended that its “bigger is better” claim is a common idiom that consumers wouldn’t expect to be supported by objective evidence, i.e., the claim was mere puffery. In response, the NAD noted that whether a “better” claim is puffery depends partly on whether an advertiser connects it to specific measurable attributes, in which case substantiation is likely needed. The NAD determined that Royal Oak’s testing in support of its “50% bigger” claim did not provide representative, statistically significant, and reliable support and recommended the claim be discontinued. The NAD also noted that Royal Oak was free to promote the size of its Super Size briquets or that its Super Size briquets are larger than competitive brands such as Kingsford assuming such claims were substantiated, but any comparative size claims must not overstate the relevance of the size difference.
Similarly, although Royal Oak argued “best grilling experience” was subjective, the NAD found it often appeared alongside claims that the briquets “light fast with high heat and a long burn time.” The NAD concluded consumers would interpret this to mean the briquets burn hotter and longer than competitors’ briquets. The NAD determined Royal Oak must substantiate these claims.
This NAD decision is consistent with prior decisions that claims closely tied to measurable attributes are not puffery. It is important for advertisers to not directly or indirectly tie subjective claims too closely to objective, measurable claims without adequate substantiation.
Alan Lowenthal is an experienced attorney representing numerous Fortune 500 companies on a wide variety of commercial, transactional and marketing law matters.
