We’re not going to actually wade into that no-win conversation. But there was a Super Bowl ad about whether a company can say it’s the “best” – it even featured a bunch of lawyers. Maybe advertising lawyers, though judging by the advice they gave, maybe not.
First of all, the ad, from “homes.com,” has a stellar resume: it includes Morgan Freeman and cast members from “Schitt’s Creek” and “SNL,” and it was directed by Taika Waititi, a New Zealand director who directed two of the Thor movies and one of the highest-grossing New Zealand films, “Hunt for the Wilderpeople” (if you haven’t seen it, check it out). So with a group like that, they should really be able to say anything they want.
The premise of the ad is that Morgan Freeman, as the spokesperson, wants to say that homes.com is the “best.” A lawyer in a suit (and when was the last time you saw an advertising lawyer in a suit?) interrupts to say that you cannot legally say that homes.com is the best. Someone else suggests that the ad say it in a voiceover, and the lawyer says, “Still no.” That second piece of advice is spot on in suggesting that a claim isn’t OK just because someone else says it for you. The problem, however, is that, as we have noted here many times, general claims that a product or service is the “best” without context that suggests measurable ways in which the product or service is in fact the best are generally viewed as puffery.
The ad does correctly pick up on one fairly nuanced advertising law issue. At the very end, the marketing team suggests that they can say the “best” if it is part of the company’s name, and they unveil a new URL – homes.comisthebest.com. As frequent NAD practitioners know, while it could do so, the NAD is loath to find that a product or service name is misleading.
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