‘What do you mean we have to prove it?’ Advertising lawyers hear various versions of this question constantly. While clients have great creative ideas that will make for memorable advertisements, we are often forced to throw a wet blanket on concepts by saying ‘looks great – as long as you can prove that the product is capable of actually doing that.’ The ‘that’ is the exaggerated notion that the creative team has dreamed up to emphasize the product’s actual attributes.

The Competition Act requires that all claims about the performance, efficacy or length of life of a product be supported by proper and adequate testing. Failing to do so can result in criminal or civil prosecution. As every marketer knows, it is also an offence to make a representation to the public that is false or misleading in a material respect.

Intelligent and memorable ads are often premised on linking the product to an exaggerated performance claim in a funny or shocking manner. Most advertisers would argue that the goal of such ads is to get the viewers’ attention, not to mislead the public. Unfortunately, unlike our freedom-of-speech-loving brothers to the south, in Canada, exaggerated but unsubstantiated claims are only legal if they fall within the parameters of ‘hyperbole.’

Where a claim is so exaggerated that it could not reasonably be relied upon by a member of the public, it is considered hyperbole and does not have to be substantiated. The classic example of hyperbole is ‘This pain reliever is faster than a speeding bullet.’ No one would believe this is true, and therefore, no substantiation is required.

Puffery is also permitted, but in a limited sense. Puffery is a self-congratulatory statement of opinion, for example the claim that a particular circus is ‘The Greatest Show on Earth.’ This is not a claim that can be substantiated, because who can say what defines the greatest show? It is merely puffery, and is therefore acceptable. However, many claims that appear to be puffery actually have to be substantiated, for instance the claim ‘The Best Toothpaste on the Market.’ This claim requires substantiation because ‘The Best Toothpaste’ would be understood by most consumers to mean the most effective toothpaste.

How do we know where hyperbole or puffery ends and a claim requiring substantiation begins? Quite honestly, there are no hard-and-fast rules. The ‘smell test’ often plays a critical role in the determination; if viewers could perceive the ad to be making a claim, that claim must be substantiated. The fact that the ad is intended to be light-hearted is inconsequential. It is the average viewer’s take-away that is pivotal to the determination.

In determining the take-away, the courts will look at the general impression of an ad. So even if the words used in an ad are truthful, the visual claims must also be considered. Visual ‘hyperbole’ is common in SUV ads, with vehicles depicted on top of mountains or traversing house-size boulders. No sensible consumer would believe that these ads show real-life situations.

Whenever an ad makes a claim that consumers could believe, advertisers should ensure that they have proper substantiation in their files. In some cases, you can limit the requirement for substantiation if certain disclaimers are added. But adding ‘dramatization’ does not give advertisers leeway to make claims that cannot be supported. The law often requires cramping an advertiser’s creative style by reining in a concept to the point where a claim can actually be proven.

Using hyperbole may get you out of substantiation for a claim, but in a competitive context, such claims can result in other problems. The Canadian Code of Advertising Standards prohibits the exaggeration of the nature of competitive differences. Since hyperbole requires the attributes of a product to be extremely exaggerated, use of hyperbole in a competitive ad will automatically constitute a violation of the Code. While the company making the claim may not be up against the Competition Bureau, it could easily face a competitor complaint through Advertising Standards Canada or the courts.

As a rule of thumb, any claims relating to the superiority of a product – whether comparative, absolute or opinion, must be proven through testing and/or consumer research prior to publication.

The Competition Act does not provide any specific direction as to what constitutes ‘adequate and proper testing.’ We are forced to draw upon industry practices, court decisions and recognized advertising procedures to ensure proper substantiation and to help shield the advertiser from liability.

Case law teaches us that testing should be designed to investigate the claim as interpreted and understood by the average consumer, not as intended by the advertiser. It further instructs that tests should be conducted under controlled conditions, excluding external variables that might affect the results.

Don’t forget that competitors can (and will) challenge survey methods and criteria, and the testing you have used. And don’t assume that your ‘tongue-in-cheek’ commercial will be understood as you intended.

Shelley Samel is an advertising and marketing lawyer at Gowling Lafleur Henderson LLP in Toronto. She can be reached at shelley.samel@gowlings.com.