CAP publishes “the Best Guide to Objective vs Subjective Claims in the Universe

The question

When do superiority claims constitute puffery and when are they considered objective, thereby triggering substantiation requirements?

The key takeaway 

Be careful, it isn’t what you intend that counts, it’s how consumers (and the advertising regulators) are likely to interpret the claim. If you tie a “best’” claim to any specific or measurable criteria, then it’s likely to be considered an objective claim requiring substantiation. But if it relates to a customer’s subjective reaction (such as “best-looking”), then you may be able to have it deemed to be puffery.

The new guidance

CAP’s new publication, “the Best Guide to Objective vs Subjective Claims in the Universe”, covers objective claims, subjective claims, “best” or “leading” claims and testimonials. 

If a claim is likely to be interpreted as factual, companies should ensure they can support and substantiate them (especially, if referring to health and beauty products). CAP did acknowledge that some claims are clearly so exaggerated that consumers won’t interpret them literally, and the CAP Code expressly permits puffery of this kind. However, even if a claim is intended to be subjective but could be interpreted as objective, the claim should still be substantiated.

CAP did consider that some claims are not as obvious, for example “best” claims. If the claim is linked to specific and measurable criteria, ie “best-selling”, they would likely be considered objective and subject to substantiation requirements. However, if it was, for example, “best looking” or “best-tasting”, therefore requiring subjective reaction then it is possible for it to be considered puffery, depending on the context. 

With superiority claims, such as “No.1” or “market leading”, as well as top parity claims, like “one of the leading”, the ASA will likely consider them as objective and based on sales data. If a company can show that their product of service is demonstrably as good as their competitors, that is acceptable. 
With testimonials, CAP explained that although quoting satisfied customers is an effective and legitimate advertising tool, they should not be a mechanism to include unsubstantiated claims. If the testimonial includes endorsements that are likely to be interpreted as objective, then there must be evidence to support it. 

Why is this important?

The ASA will consider the interpretation of a claim, rather than the marketing team’s intention. If the ASA considers a claim to be objective, it will likely be considered misleading if the claim cannot be substantiated. 

Companies must also be careful to ensure that expressions of opinion are not implied to be objective claims. If they are, they must be capable of substantiation.

Any practical tips?

Stay mindful of superiority claims, particularly where they make a comparison with identifiable competitors or across an entire market. If so (for example, “market leading”), then remember that such claims are comparative claims also, thereby triggering a whole additional set of considerations under comparative advertising rules. 

Winter 2021