In what surely couldâ€™ve been a blow to automobile ad campaigns everywhere, a New York federal judge saved the day and ruled that Ford™’s â€œBuilt Ford Toughâ€ is nothing more than mere puffery, and therefore not a basis for a false advertising lawsuit.
Kommer v. Ford Motor Company1 is a putative class action lawsuit in which Kommer, the lead plaintiff, is alleging (among other claims) that Ford™’s F-150 trucks are not in fact, â€œBuilt Ford Tough,â€ and that marketing claim is, therefore, an affirmative misrepresentation. Specifically, Kommer claims that the locks on the Ford F-150™’s doors do not work in freezing temperatures.2 Kommer claims that Ford™’s â€œFord Toughâ€ advertisements were a factor in his decision to purchase his F-150 and that it was reasonable for him and other consumers to believe that being built â€œFord Toughâ€ meant having doors that â€œoperate[d] correctly at temperatures at or below freezing.â€
This was a significant claim. After all, if Ford™’s claim that its vehicles are â€œBuilt Ford Toughâ€ can be held against them as some sort of guarantee of quality then where does it end? Could General Motors be held liable to a class of people claiming that their Chevrolet trucks were damaged in accidents and therefore not in fact built â€œLike a Rockâ€ as their commercials claimed?3 Could BMW be held liable to disappointed owners claiming their vehicles were not the â€œUltimate Driving Machineâ€ like promised?
Of course not. Law students are taught in their first year (and probably their first semester) that sellers are granted some leeway when it comes to hawking their wares and are allowed a degree of puffery. Puffery is defined by one court as a generalized or exaggerated statement such that a reasonable consumer would not interpret the statement as a factual claim upon which he or she could rely. It is well-established, as the judge in the Kommer case notes, that advertising and marketing that are mere â€œpufferyâ€ are not grounds for a misrepresentation lawsuit.
While we may not all recognize the word puffery, we all know what kind of ads that definition is referencing. No reasonable consumer would assume that Pringles chips are actually so tasty that once you pop the can open you literally cannot stop eating them and then sue if you arenâ€™t satisfied. It™’s just an exaggeration meant to catch your attention. Similarly, the judge in Kommer found that Ford™’s statements that their vehicles are â€œBuilt Ford Toughâ€ are just exaggerated and generalized claims and therefore cannot be reasonably relied upon to the specific degree the plaintiff was asking for.
Kommer involves other claims, and the judge has granted permission to the plaintiff to amend his complaint so Ford has probably not escaped that case entirely, but companies should feel safer knowing that their various claims of being â€œKid tested, mother approved,â€ â€œmelting in your mouth, not in your hands,â€ or being â€œthe best part of waking upâ€ will likely be seen as catchy and exaggerated slogans rather than legally binding guarantees.
1 Kommer v. Ford Motor Company, No. 1:17-CV-296 (N.D.N.Y. July 28, 2017)
2 These claims are unrelated to Ford™’s other infamous lock-related incident, when the company allegedly forgot to include locking mechanisms on the vehicle doors of the SUV™’s it supplied to the defunct amusement park/zoo, â€œJurassic Park.â€
3 General Motors was in fact sued in the 90™’s by a consumer who claimed his Suburban™’s allegedly defective braking system belied the company™’s assertions that their cars were â€œLike a Rock.â€ The court dismissed the case on the ground that Chevy™’s advertisements were mere puffery.