![]() The situation would be different were the ad to be articulated in less fantastical or more concrete terms.The fantastical nature of the advertisement’s storyline is a key factor. Its contents will almost certainly be held to be mere puff, on the basis that no sensible person body would have taken Red Bull’s advertisements as serious statements of fact or serious promises as to Red Bull’s effects. In general, English courts are unlikely to hold that an ad of this type contains any concrete representations or terms.Given the nature of the statement, and the context in which it was made, was it intended to be taken seriously or literally? The issue, ultimately, is one of balance. An example is Osborn v Hart (1871) 23 LT 851, where the statement ‘superior old port’ was held to contain a term as to drinkability.Ģ. On the other hand, statements which might seem to be puff can also be held to convey some assurance as to the quality of goods being sold.Hyperbolic claims in advertisements are usually mere puff. Courts have tended to speak in terms of ‘extravagant phrasing which would naturally be discounted by sensible persons’. A statement is mere puff if it is not a literal statement of fact, and is not something that the person making them promises.To decide into which of these categories a given statement falls, you will need to work through the points that the courts take into account in order to determine whether a statement was puff, or something that had legal effect. The points under comment 1 will help you to do this if you find yourself struggling.ġ.The key issue here is the distinction between statements that are ‘mere puff’ and those that have legal effect because they are either representations or terms. Watch the ad and analyse whether it could be held to have any legal effect in English contract law. Red Bull, the argument went, was marketing its products as providing a benefit that it was not. In point of fact, however, it contained far less than half the amount of caffeine that a cup of coffee would. Careathers argued that Red Bull’s advertisement strongly implied that it was a superior source of energy in comparison with other drinks. In fact, the complaint is more nuanced than that, raising issues that go to the heart of the distinction between representations, terms, and puff as well as the question of when and how a pre-contractual statement can create binding legal obligations. Surely it is obvious to any reasonable person that Red Bull isn’t actually claiming that people drinking it will magically sprout feathery appendages? Nevertheless, the lawsuit is often cited online as an example of the silliness of class actions in the US. The dispute never went to trial, and was settled out of court. Benjamin Careathers, a regular consumer of Red Bull, filed a claim in the Federal District Court for the Southern District of New York (the same court in which Leonard v Pepsico Inc (1999) 88 F Supp 2d 116 was filed) arguing that Red Bull’s claim was false. Virtually everyone will have come across Red Bull’s slogan ‘Red Bull gives you wings’.In 2013, this slogan led to a lawsuit.
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