If you’re buying something on an online auction site, you’ll often notice that the seller supplies photos of the item and adds words to the effect of “the photos form part of the description”. Which makes sense. You can’t see the thing up close, so the photos matter.
So it’s funny how, in the case of food in certain “restaurants” and cafes, it turns out that the photos of the menu items you see on promotional flyers, commercials and in-store displays aren’t part of the description. Not quite, anyway.
If, like me, you’ve been disappointed at the contrast between the big, succulent burger depicted on the illuminated overhead photo and the sad, stingy little thing you got when you handed over your money, you might sympathise with the people who launched class actions in the USA against some fast-food chains. The plaintiffs in those cases argued that the tantalising photos were deceptive and that they broke laws against false advertising.
To cut a long story short, they lost. In advertising and marketing vendors are allowed by law to use what’s called “puffery”. Puffery consists of wobbly statements and exaggerations that nobody is expected to believe. “Best burger in Australia”, might be an example. You might see those words chalked on a blackboard outside a service station cafe in a small town but chances are you won’t expect them to be demonstrably true. Even if the burger is awful you probably won’t feel more than usually disappointed. Even if you’ve never heard of “puffery”, you already get the concept: the statement about the burger is not meant to be legally reliable.
Sad little burgers
So, what about those restaurant photographs? Personally, I feel a resentment about them because usually they seem so calculated. The photos make the buns and patties look big, fresh and succulent in a way they seldom are in real life. As far as the US court was concerned the plaintiff’s case failed because, hey, of course people who are selling things want to portray them in the best possible way. When you want to sell your house, for example, you might hire some lovely furniture and plants to be temporarily installed while a professional photographer frames every shot in a way that highlights good points and excludes bad points. A car company might show their vehicle being driven in places and ways they would or could never really be driven, usually with beautiful and handsome people behind the wheel. Same thing, the court reckoned. I’m not quite convinced, since the food photos are often so dissimilar from reality that I think they might actually cross the line into deliberate deception. But it doesn’t matter what I think, because the court decided against the plaintiffs.
There are numerous other cases that probe the hazy no-mans-land between puffery and outright lies.
A recent case, still not decided, involves chocolate maker Lindt, which uses the words “expertly crafted with the finest ingredients” on its packaging. Some consumer advocates tested various chocolate bars and found lead and cadmium in them, in various concentrations. It turns out that chocolate usually contains some heavy metals, but it also seems to be the case that chocolate makers could – if they chose – minimise the heavy metal content by buying their ingredients from places where the cocoa beans have lower concentrations of those substances. It is being argued that Lindt, by printing the words “finest ingredients” on its packaging, implied that it actually took care in buying the best and, by implication, safest beans. The consumer advocates argue that people are willing to pay a premium price for Lindt products because they believe the words on the label. Lindt’s lawyers, however, say the writing on the label is nothing but “puffery” that nobody ought to believe.
Here’s another puffery case that might interest you. This case centres on plastic recycling, which – it is becoming horribly apparent – is a gigantic global fraud perpetrated by a cast of corporate demons led by the oil industry, which provides the raw material that is used to make plastic. A senior transnational corporate demon, Nestle Waters, sold a pile of its North American business to an up-and-coming private equity imp that calls its water-siphoning and bottling enterprise BlueTriton. In its public communications, BlueTriton declares that its bottles “can be used over and over again! . . . . 100% recyclable . . . and can be used for new bottles and all sorts of new, reusable things.”
It’ll never be recycled
The problem with plastic recycling is that, although it is technically possible, it is almost never profitable. As a result, most plastic is discarded into the environment in one way or another. And all the corporate players, from the feedstock producers to the bottle-makers and the drink sellers, are very well aware that their products will almost certainly never be recycled. So an environmental group called The Earth Island Institute took BlueTriton to court, alleging that its statements about recycling were false advertising. In its defence, BlueTriton argued that its statements about recycling and, more broadly, its public relations campaigns painting it as environmentally caring, were “non-actionable puffery”, as well as being “vague and hyperbolic”.
It seems to me that a big problem with the idea of “puffery” is that it leads us to keep lowering our expectations in an ever-descending spiral. The more we come to expect and accept dishonesty from corporations, the more it can be argued that dishonesty is just part and parcel of doing business. The puffery defence just gets wider as the public gets more and more disillusioned.
This applies equally to politics, where we can’t even get our political parties to agree to banning outright lying in election campaigns. The idea is implicit that political promises can’t be trusted. We get used to the idea that politicians will say anything if it helps them get elected. After they are safely in power their inconvenient promises can be ripped up and forgotten, if it suits them.
Lovers of “free market” economics delight in arguing that we don’t need laws or regulations to protect us from bad behaviour by corporations and business because bad behaviour will cost businesses market share and force them back onto the straight and narrow. It isn’t true. For a start, market concentration means we are stuck dealing with monopolies and cartels – in politics and business – and government regulations and laws are often our only possible recourse. The reputational damage of exposure is merely a cost of doing business, as far as the corporates are concerned.
But more than that, many corporate players spend a fortune on advertising and marketing, on lobbying and outright bribery. They can lie and cheat and steal all they want and find a million ways to avoid being held accountable. And if you ever have the temerity to stand up and complain about being lied to, well it turns out those promises and guarantees you relied on when you handed over your money were nothing but “puffery” and you should have had more sense than to believe them.
Silly you. Silly me. We should know by now. From simple hamburgers to the policies of political parties and the reasons for the wars we fight and pay for: it’s all puffery, plain and simple. You want the truth? There it is.
