Puffery at the Motion-to-Dismiss Stage

Puffery at the Pleadings Stage: The Statement Types Courts Find Dispositive

Puffery dismissals turn on a single distinction: an actionable advertising statement must be a "specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact," while non-actionable puffery comes in "at least two possible forms: (1) an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion." Pizza Hut, Inc. v. Papa John's International, Inc., 227 F.3d 489 (5th Cir. 2000). Applying that test, the Fifth Circuit held that Papa John's "Better Pizza." slogan, standing alone, "epitomizes the exaggerated advertising, blustering, and boasting by a manufacturer upon which no consumer would reasonably rely."

The question is one of law, which is what puts it within reach of a Rule 12 motion. "District courts often resolve whether a statement is puffery when considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)," and the Ninth Circuit could "think of no sound reason why they should not do so." Cook, Perkiss And Liehe, Inc. v. Northern California Collection Service Inc., 911 F.2d 242 (9th Cir. 1990) affirmed a 12(b)(6) dismissal on exactly that footing: the defendant's boast that "we're the low cost commercial collection experts" was a "general assertion[] of superiority rather than factual misrepresentation[]," because "[a]dvertising which merely states in general terms that one product is superior is not actionable" — only "misdescriptions of specific or absolute characteristics of a product are actionable."

At the pleadings stage the doctrine does most of its work on two statement types. The first is the unmodified superlative. Because "[w]hether a statement is puffery is a question of law that can be properly decided on a motion to dismiss," Taleshpour v. APPLE INC., No. 5:20-cv-03122 (N.D. Cal. Mar 30, 2021) dismissed misrepresentation claims built on Apple's descriptions of its laptops as "revolutionary," "groundbreaking," offering "breakthrough performance," and containing "the best Mac display ever" — "subjective, immeasurable assertions constituting non-actionable puffery because they say nothing about the specific characteristics or components of the computer." The second is the subjective comparative with no defined metric. EP Henry Corp. v. Cambridge Pavers, Inc., 383 F. Supp. 3d 343 (D.N.J. 2019) held on the pleadings that claims of "unrivaled beauty" and a "standard for beauty" were "subjective unprovable statements," and that "best" and "nothing surpasses" claims fared no better — "[w]hether something is the 'best' is highly subjective, is almost always a matter of opinion" — while letting "unrivaled durability" proceed because durability, unlike beauty, can be demonstrated by comparative testing against objective criteria.

Vague compliance and quality assurances fall on the same side of the line. Lee v. Mikimoto (America) Co. Ltd, No. 1:22-cv-01923 (S.D.N.Y. Mar 30, 2023) dismissed New York consumer-protection claims against a pearl retailer whose marketing promised "the finest," "the most luminous of all," and "the highest quality" pearls — "[s]ubjective claims about products, which cannot be proven either true or false" that "fail as a matter of law" — and held that the representation that its pearls "meet the strictest standards" was "itself puffery": "[g]eneral statements about compliance with safety and quality standards are non-actionable 'puffery' where ... they fail to identify specific requirements or standards."

The dispositive variable is specificity, and it cuts both ways. In Taleshpour, the same complaint's technical claims — a display "0.88 millimeters thick" operating at "500 nits of brightness" — were "actionable because they are capable of being proven false," though those claims failed anyway because the complaint never alleged the specifications were false. And Pizza Hut itself warned that context can convert puffery into fact: paired with misleading ingredient-comparison ads, the "Better Ingredients. Better Pizza." slogan "is no longer mere opinion, but rather takes on the characteristics of a statement of fact." The drafting lesson is to sort the challenged statements before moving: unmodified superlatives, taste- or aesthetics-based comparatives without a defined metric, and generic quality or compliance assurances untethered to an identified standard are dismissible as a matter of law, while numeric specifications, absolute product characteristics, and superiority claims given definition by surrounding comparisons must be attacked on falsity or materiality instead.