Barely Legally

Confessions of a Moot Court Bailiff

The Magic Words

Fresh off the testgasm known as the New York Bar Exam, I’m visiting my folks in the Deep South: Atlanta. Everyone’s unflappably friendly here, but I’m convinced they’re secretly trying to kill me with pulled pork and racks of barbecued ribs. The thing is, the folks down here don’t pretend this stuff is even remotely healthy. They just let the food speak for itself.

As far as I can tell, three pounds of slow-cooked porcine perfection doesn’t scream “healthy choice.” There’s something to be said for letting me make up my mind about whether I want to live to see 40.

Now, this Vitamin Water stuff, that’s a pig of a whole different color. There’s an article on the Huffington Post about a recent lawsuit against Coca-Cola over false advertising for Vitamin Water. John Robbins completely misses the boat by calling Coca-Cola’s defense “a staggering feat of twisted logic,” when it’s actually a perfectly mundane and unremarkable legal defense. To explain, it’s best to start at the beginning.

Sugar Water

Coca-Cola is a company that sells sugar water. The success of Coca-Cola’s sugar water is based on their superior ratios of sugar to water, or ancient gypsy magicks, or something. I don’t know. For whatever reason, Coca-Cola’s sugary water drinks are wildly successful.

One of these successful sugar water drinks is called Vitamin Water. Someone is suing Coca-Cola for making unwarranted health claims about Vitamin Water; specifically, that the sugary water called “Vitamin Water” is not as healthy as it sounds. Coca-Cola has actually spent a lot of money marketing Vitamin Water as a healthy drink; this is presumably a less laughable claim when your principal product doubles as chrome polish.

If you’re Coca-Cola, there are a couple of ways to fight off a false advertising lawsuit.

The Boring Way

The first way is to disprove the elements of false advertising. This brings into issue both (1) what you say and (2) what is objectively true about your product. Assuming you could quickly settle what was said and what your ad campaign meant (hint: this will take forever and your legal fees will bankrupt you), you’d still have to argue about whether or not it was true.

So, once the lawyers are done quibbling, the scientists would go back and forth with clinical tests of sugary water on rats, and the jury would claw their own eyes out in a desperate attempt to cause a mistrial and earn their freedom. This is the way grownups with more lawyers than common sense settle their disputes.

Dear Reader, this is not the Almost Legally way.

The Fun Way

No, the fun way to defend yourself in a false advertising lawsuit is to stand your ground, concede points 1 & 2 above, and cry “puffery!” An advertiser can acknowledge that they made false claims about their product, but no reasonable person would ever believe these claims. At first, this seems like it wouldn’t be a great defense to lying about your product.

But that all depends on why we care about advertising in the first place. There’s a nice essay on the free market’s reliance on the truth in advertising on the FTC website. It explains the rationale behind regulating advertising in the first place.

Without getting too philosophical, capitalism hinges in part on people knowing which product is best for them. If advertising is allowed to flat-out lie, the consumer search costs required to find the right product create an incentive for producers to spend more time (falsely) advertising than creating good products.

If we accept this justification for promoting truth in advertising, then puffery is the free market equivalent of “no harm, no foul.” You need to use the magic words: “no consumer could reasonably believe” your claims. If only an idiot would believe your claims, then who cares if it’s not true? Your lies have not added to the reasonable consumer’s search costs.

Puffery isn’t a good defense to slight stretchings of the truth, though. If you’re going to claim puffery against false advertising lawsuits, go big or go home. This is a lot of fun if you’re a lawyer: tell your client to make their claims more outlandish. Axe Body Spray has turned this into a sport. Joe Isuzu was a golden god of puffery. Pretty much every beer commercial ever does this. Any ad claiming that MLS is watchable (zing!) is puffery in extremis.

The Upshot

So what John Robbins seems to take as some bizarre, mind-bending, reverse double-secret corporate conspiratorial psychology is really a pretty straightforward legal principle. Puffery is the best thing ever. Hell, if you don’t believe me, read The Best Puffery Article Ever. It’s a wonderful essay on puffery that’s not worth summarizing because you should read the entirety.

Robbins takes this opportunity to rail (rightly, I think) against the adverse effects of drinking lots of sugar water, but he touches on the actual issue only once and briefly:

I guess that’s why they spend hundreds of millions of dollars advertising the product, saying it will keep you “healthy as a horse,” and will bring about a “healthy state of physical and mental well-being.”

I agree with this point. This is a good point. This is where an insightful criticism of Coca-Cola’s defense would begin. Coca-Cola’s advertisements about Vitamin Water probably aren’t so fantastical that you or I would be foolish to believe them. But instead of exploring whether Coca-Cola’s advertisements rise to the level of absurdity needed to be puffery, Robbins complains:

  1. About the fact that you could buy the vitamins in a bottle of Vitamin Water for a penny. (The profit margins on vitamin-enriched sugar water are as outrageous as the profit margins on regular sugar water.)

  2. That this kind of sugar water has so much sugar in it that it should properly be classified as a different kind of sugar water: soda.

  3. That the overall obesity rate in America is depressingly high, and liquid calories constitute a depressing amount of our caloric intake. (I agree with both points, but Robbins fails to connect the American overconsumption of sugar water and our rising obesity rates with any false advertisements about any sugar water.)

  4. That Vitamin Water advertised on that Lebron James show.

  5. That the Lebron show was so popular. (I mean, I agree, but this really doesn’t have anything to do with anything. This smacks of heavy-handed SEO, like that time I wrote an article about fake Rolex watches and penis-enlarging pills.)

  6. That people ought to just drink water instead of sugar water, and that there are many ways to make water taste like things that are not water by adding things that are not water to water.

I agree with Robbins fundamentally; drinking sugar water all the time is silly, and I think there’s a very good chance that Coca-Cola’s ads are false advertising. I think that he and I are on the same team here: let’s drink less sugar water, and more water water. But this article is wildly ignorant of one of the fundamental principles of advertising law; to claim that Coca-Cola is employing some ineffable legal voodoo in its defense is flat wrong. Puffery is not new.