Abstract
American contract law is supposed to facilitate the efficiency and fairness of market transactions between parties. Does the increasing success of the puffery defense in false advertising and securities cases further the fairness of transactions between companies with major advertising budgets and consumers? This Article contends that it does not.
In assessing the validity of a market transaction, American contract law assumes that transparency exists between the parties. But because of courts’ willingness to accept the puffery defense, companies have significant ability to lessen the transparency. Puffing about products or services, such as claims that a product is the best in the world or America’s favorite, leaves consumers in the dark about the true attributes and qualities of advertised products or services. When courts honor the puffing defense, they thereby leave consumers unprotected and lacking a remedy for harm suffered from reliance on the puffing. Paradoxically, the puffery defense succeeds when a company’s boasts about its products or services cannot be proven true.
This Article urges a reexamination of the assumptions underlying the puffery defense and the disparate treatment of dishonesty in the commercial and personal contexts. Such a reexamination is needed now more than ever, as courts may become increasingly willing to assume (mistakenly) that expanded access to information renders consumers savvy enough to disregard commercial puffery.
Recommended Citation
M. N. Browne, Kathleen M. Hale & Maureen Cosgrove,
Legal Tolerance Toward the Business Lie and the Puffery Defense: The Questionable Assumptions of Contract Law,
37
S. Ill. U. L.J.
69
(2026).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol37/iss1/3