Note I’m not going to stir up trouble for the local restaurant discussed below. I’m just curious.
So there is a restaurant that has a sign out front that says “4 out of 5 dentists prefer our restaurant.” Now, I’m going to go out on a limb and assume they did not poll any dentists. Assuming they did not is this false advertising? If someone (not me, don’t care, I think it is funny) made an issue out of what would be a penalty? Fine I assume?
Even if it was false advertising (and, I agree with Joey P, this’d almost undoubtedly count as puffery), about the worst that would happen is that, if someone called them out on it, they’d be told to stop using it – the FTC isn’t likely to get involved in some dispute about a local restaurant’s advertising, and you’d be looking at some state regulatory agency weighing in.
If it were seen as being deceptive to the point that it were misleading consumers about the restaurant or its food, then I suppose you might possibly be seeing fines, or criminal investigation.
People have gotten so used to exaggerations in advertising that lying seems now totally acceptable so long as you can get away with it. For instance, I was watching a flipping automobile repair shop show where the show host said he thought a particular renovated car joint was better than any around and asked the owner whether he concurred, which the man did. So they put up a huge sign declaring people voted this automobile repair shop to be best in town. The truth is they both raised their hands when they agreed.
A place up the road from where I lived a few years ago, used to claim on their menu, “Our chips and gravy voted the best in Sydney.” A friend asked while ordering, who had voted in the poll. “All the staff here,” said the woman serving him.
(Advertising and market research professional checking in )
In the U.S., the instances in which companies generally will need to substantiate advertising claims is if they want to make a claim like “Our brand is preferred over our competitor’s brand.” In order to be able to make such a claim (and, more importantly, to be able to have it survive the inevitable legal challenge from the competitor), there are some very particular details of the market research that would have to be done among consumers (number of interviews, nationally-inclusive sample, etc.) It’s called “claim substantiation research,” and it’s an expensive and fussy sort of study to conduct.
Without that sort of research, if a company tries to make that sort of claim in their advertising, the FTC will almost undoubtedly find in favor of the competitor, and force the original company to stop using the claim.
In nearly 30 years of working in market research and advertising, I’ve developed proposals to do this kind of research at least a dozen times – and I’ve never actually done a claims substantiation study, as, in every case, it was decided that it was just too much of a pain in the butt.
And, yes, in a lot of cases, if you see a little mom-and-pop place, like a local restaurant, put up a sign saying something like, “voted best hamburger in town,” it’s very likely that, at best, they did something like ask a few of their patrons.
Essentially, the only ways that a claim will wind up coming under scrutiny (and some regulatory or legal agency will ask to see substantiation) will be:
A competitor disputes the claim, or
Someone (usually consumers or a consumer-protection agency) comes to believe that the claim is deceptive or injurious
Something like “best hamburger in town” or “Our chips and gravy voted the best in Sydney” is highly unlikely to suffer from either of those.
Generally speaking, surveying your patrons, or your employees, or anything in which you only do a small number of surveys, isn’t going to meet legal muster, but it’s also highly unlikely that it would ever get to the point in which there’d be a legal challenge, either.
Puffery applies to non-factual claims. “We have the best hamburger in town!” is puffery and is legal, because “best hamburger” is subjective, and there’s no way to say that they’re not the best. On the other hand, “Clevelanders voted us the best hamburger in town!” is a factual statement: There either was or wasn’t a vote by Clevelanders on what the best hamburger was, and this place either did or didn’t win. If there wasn’t in fact such a vote, or this place did not in fact win it, then that’s false advertising. On the other hand, if there’s such a vote every year, and this place last won it back in 1972, and for the past ten years they’ve consistently been in last place, the claim is still true: Clevelanders did, in fact, at some point in the past, vote for them as the best.