I have been involved in consumer marketing, one way or another, for almost all of my life – always as a consumer, sometimes as a marketer and latterly as a lawyer focussing on marketing law. Because I do a lot of training, I look at current advertising in particular, to see if my clients can learn anything from it. And sometimes, not very often, I see something so good that it takes my breath away. In fact, the ad that I’m going to talk about almost took my life away – it was on the back of a truck on the motorway. Here was I thinking about the innovative approach to the use of puffery, when I noticed another driver (no doubt similarly occupied) about to drift into my car. We survived, but I do wonder if really innovative ads on trucks become a safety issue. But I digress.
The ad in question was on the back of a Spicers Paper truck. It advertised their recycled paper which is called 9lives – and of course its mascot is a rather seedy cat with a patch over one eye, going through one of its lives and being – recycled, I suppose. Memorable. You can see versions of this on the website http://www.9livesfund.org.nz/index.html. The website incarnation is a classic example of use of a symbol to lead you through the story. You will not be able to get out of this website without clicking on each link – the cat heads for disaster, but what will the disaster be?
In one link he (it is definitely a he, female cats are too clever) is dancing on a hot tin roof with his top hat and tails (memo to Spicers: where’s the white tie?) – and if you click the picture you will find out all about the recycling industry as well as the fate of that life of the cat. And of course another logo leads to the paper specifications, but I won’t spoil your fun by telling you the details.
Now (to spoil a good story with legal analysis) this is a great example of puffery in advertising. The concept of puffery in advertising has been known to the courts since at least the famous case of Carlill v The Carbolic Smokeball Company Ltd in 1898. You can see a very accurate and entertaining “silent movie” summary of this at http://bit.ly/ce4Mk2, though it doesn’t give too much hint of what it was like inhaling powdered carbolic acid. Puffery is the use of exaggerations so obvious they are unlikely to mislead anybody – like the Air New Zealand ads where we know the baggage handlers will in fact be wearing clothes when they throw our cases onto the trolley.
In the 9lives ads, we all know that there is no cat, and that no cat actually has nine lives (well, it’s not scientifically proven, though my Harriet the cat could no doubt pronounce upon it). It is not “true” at all. But it’s great branding and the brand tells the story – that you can recycle paper and you can purchase quality recycled paper for your office use.
But – all puffery has an underlying message. For Air New Zealand it is that you will have to pay only the fare they tell you about. For 9lives paper the underlying message is that all of the paper with 9lives’ logo has high recycled content. And if your product doesn’t match the underlying message – even a carbolic smoke ball won’t save you. Talking to a lawyer before you put your advertising to bed just might, though!
Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at firstname.lastname@example.org.