Puffery is a commercial law term regarding an exaggerated description of a good or service. Also called puffing, dealer’s talk, or sales puffery, puffery intends to encourage the potential buyer to buy the product that is described. A puffery is different from a fraud or a factual misrepresentation because a puffery involves stating opinions as opposed to asserting facts. If a person engaged in puffery asserted something as a fact while it is not, then it would constitute a factual misrepresentation. If the buyer reasonably relies on the factual misrepresentation and results in suffering harm from the reasonable reliance, then it would constitute fraud. Therefore, a seller enjoys some leeway in asserting opinions under puffery, but the seller must take extensive care so that they do not assert something as a fact that is not true. A seller should rely on subjective rather than objective statements if engaged in puffery.
Puffery generally does not engender a basis for an express warranty action. However, if a court were to determine that a puffery statement went too far, and beyond the perimeters of mere opinion, then the puffery statement in question could suffice as a basis for either the express warranty action or the implied warranty of fitness for the good or service the buyer has purchased.
Sometimes, the boundary between puffery and false advertising can be quite vague. Thus, the federal and state governments have implemented advertising laws to regulate puffery. On the federal level, the FTC (Federal Trade Commission) principally manages and enforces advertising laws. Specifically, the FTC enforces that all puffery statements stay in the realm of opinions. Also, the Lanham Act of 1946 has outlawed false advertising. On the state level, different states implement different advertising laws. Therefore, if a seller is to engage in sales talk, then the seller must be aware of the advertising law in their jurisdiction.
See: Carvelli v. Ocwen Fin. Corp. (2019); United Concrete & Constr., Inc. v. Red-D-Mix Concrete, Inc., 349 Wis. 2d 587, 836 N.W.2d 807, 2013 WI 72, 833 N.W.2d 714 (Wis. 2013)
[Last updated in February of 2024 by the Wex Definitions Team]