Is puffery lawful under the Argentine legislation?
By Paula Caraffa Morando and Josefina Piñeiro.
Recently, the Brazilian Superior Court of Justice (“SCJ”) ruled on the use of exaggerations in advertising, as regards an advertisement made by Heinz, which provoked a conflict with Unilever (owner of the Hellmann’s trademark). Heinz used the phrases “Heinz, the most consumed ketchup in the world” and “Heinz, best in everything he does”. These advertising techniques are known as puffery and they consist of exaggerating the attributes of products or services used to attract consumer attention.
In its decision, the SCJ analysed separately the legal effects of both advertising messages. On the one hand, it stated that the claim of “Heinz, better in all that he does”, cannot be objectively measured by consumers, since it represents a subjective opinion of the manufacture on their products. The SCJ stressed that it should be reasonable for consumers to expect manufacturers to boast about their own goods or services and that prohibiting the use of such advertising statements inadequately disqualifies the ruling of average consumers.
With respect to “Heinz, the world’s most consumed ketchup”,it determined that Heinz had provided sufficient evidence to prove the veracity of the claim, since his tomato sauce was, in fact, the best-selling one at the time of the advertising campaign. Furthermore, the SCJ stated that Heinz should not be required to apply disclaimers with information on surveys that corroborated the advertising expression, as the claim was in fact honest.
In the Argentine regulatory regime, there is no specific regulation for puffery or exaggerations used in advertising. However, such cases could be considered lawful, unless they are subsumed in cases of misleading advertising.
According to the Fair-Trade Decree No. 274/19 (the “Decree”) misleading advertising consists in the performance of any kind of presentation, advertising or propaganda which, through inaccuracies or concealments, may mislead, mistake or confuse the characteristics or properties, nature, origin, quality, purity, mixture, quantity, use, price, marketing conditions or production techniques of movable property, real estate or services.
Here is a brief list of the rules governing misleading advertising in Argentina:
- The Civil and Commercial Code of the Nation (“CCCN”) which in its section 1101, paragraph a), prohibits so-called misleading advertising.
- The Paris Convention, which in its section 10, paragraphs 2) and 3), defines acts of unfair competition.
- The aforementioned Decree prohibits “misleading advertising” and defines acts of deception in section 11.
- Law 24.240, on Consumer Protection, which regulates the duty of information in article 4.
- The Code of Ethics issued by the Council for Advertising Self-Regulation (CONARP), which considers unlawful the use of phrases that affirm the superiority of a product when this alleged superior quality cannot be verified or is not true.
- ANMAT Provision 4980/2005 on advertising of foodstuffs, which prohibits the assertion that a product has an attribute or comparative characteristic superior to another or that the product advertised is the only alternative within the heading in Annex III thereof, point 2.9 (l).
Therefore, “exaggerated” advertising will be lawful in Argentina when the superiority of the product can be objectively verified by the consumer public. In other words, the decision of the SCJ is aligned with the Argentine rules given that it was established at the trial that Heinz’s products were the best-selling products on the market. As this is objective data and not a mere opinion, it can be concluded that the advertisement carried out by Heinz is lawful in the light of the Argentine regulations.
However, this is not so clear in the case of the phrase “Heinz, the best in everything he does”. This is because given the difficulty of proving said claim this information would not have been demonstrated in the case (the only thing proven is that it is the best seller). Therefore, the latter phrase does not appear to be in line with Argentina’s rules on misleading advertising.
It is of the utmost importance that companies consider the veracity of their advertising claims and the possibility of proving their veracity through sufficient means to avoid fines for misleading advertising.
For further information please contact: pmcaraffa@ojambf.com and/or jpineiro@ojambf.com.
