The best TV: mere puffery or objective claim?

“The most beautiful”, “the best tasting”, “the best there is”. These are all common claims in advertising. It is often fine to promote products by using superlatives. The consumer often understands them as mere puffery and does not take them literally. However, sometimes superlatives are understood as objective claims and do require hard evidence. But when is this the case? This question was addressed recently by the District Court in Amsterdam in preliminary proceedings.
 
TPV holds a license to produce and sell Philips OLED TVs. It advertised a Philips TV using the slogan “The best OLED TV you can buy”. In some of the ads, TPV showed a test certificate of branch organisation EISA. EISA each year awards prizes for best electronic products and had labelled the Philips OLED TV as “best buy” in 2017. Competitor LG argued that the slogan was misleading and sued TPV. According to LG, TPV gave the impression that the Philips TV had won the “best product” prize, whereas in truth the product had only been labelled as “best buy”. The difference is that “best buy” refers to best value for money, whereas “best product” refers to best quality.    
 
The Amsterdam District Court finds that these ads are indeed misleading. When seeing the test certificate, the average consumer is likely to perceive the slogan as an objective claim, which requires hard evidence. TPV cannot deliver this evidence, taking into account that the Philips OLED TV has not been awarded the “best product” award.
 
At the same time, the decision also shows that slogans such as “the best” are not always objective claims that require hard evidence. In some of its advertisements, TPV had used the slogan “The best OLED TV you can buy” without showing the test certificate. The Court decides differently in relation to these ads: TPV has entered a grey area, but it is insufficiently clear that these ads would indeed be deceptive. As a result, the District Court is not ready to award a prohibition in relation to these ads in preliminary proceedings.
 
The decision shows that the question whether claims such as “the best” are mere puffery or objective claims, to a large extent depends on the context in which they are made. If the advertiser refers to test results, superlatives quickly turn into objective claims that require hard evidence.
 
Lars Frietman and Bram Duivenvoorde