Cos. Should Back Up Sensory Advertising Claims With Data

Law360 (February 26, 2021, 5:58 PM EST) -- Better taste. More authentic smell. Covers up odor better. More comfortable fit. These kinds of human-sense-based advertising claims are potent advertising tools, but pose difficult challenges for advertisers to prove and substantiate.

In order to determine whether, and how, to substantiate a given claim, advertisers must understand the distinction between sense perception claims, more run-of-the-mill performance claims and puffery. In essence, an advertiser that makes a sense perception claim is taking subjective preferences, based on otherwise unique human sense perceptions, and turning them into objectively provable advertising claims.

How is this done? Well, as the old joke about how porcupines procreate...

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