ADventures in Law

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We’ve said it before, and we’ll say it again: NAD does not have a great sense of humor when it comes to false disparagement dressed up in a joke. And it hurts our hearts, as at least one of us really is a tween boy trapped in a middle-aged lady’s body. Yes, farts make Amy laugh. Hard.

In what may be one of the greatest lines in an NAD case <a href="http://asrcreviews.org/nad-recommends-that-traeger-pellet-grills-discontinue-falsely-denigrating-taste-claims-for-food-cooked-on-propane-gas-grills/">report</a>, from the challenger’s portion: “Char-Broil asserted Traeger’s sophomoric humor does not relieve it of its obligation to support its objective and extraordinarily pejorative claims.” Wow. So what happened here?

This was a cheeky little <a href="https://www.youtube.com/watch?v=JYoeTul3Ts4">ad</a> by a wood pellet grill maker targeting gas grills. Two neighbors (men, natch) are grilling side by side. The one grilling with wood pellets asks the other, “What flavor propane are you grilling with?” The propane griller responds, “Gas,” as he holds up a burnt piece of meat and says, “Smells like gas; let’s eat!” Partygoers eating food cooked on the propane grill try it and say it “tastes like gas.” As they keep repeating the phrase, it sounds like “tastes like ass.” (This brings to mind Kmart classics — the “ship my pants” <a href="https://www.youtube.com/watch?v=2xwUuSM06xQ">ad</a> and the “big gas savings” <a href="https://www.youtube.com/watch?v=-9Yec76fK3E">ad</a>) Char-Broil said this was falsely disparaging because propane grills do not leave any gas taste on grilled foods.

Traeger responded that it was obviously over the top and therefore would be viewed as puffery. Alternatively, it asserted the ad was contrasting the tasteless propane flavor with the smoky taste one gets by grilling over wood. NAD rejected this assertion and said that when the ad refers to specific attributes — here, taste — that can be measured or proven, then a claim of puffery provides no defense. NAD simply disagreed that “in the context of its farcical over-the-top commercials is so outrageous that no reasonable consumer would take seriously”. We refer to this as the “Oh, come on, it’s funny” defense. And it rarely works.

The last <a href="https://asrcreviews.org/nad-finds-dollar-shave-club-commercials-dont-imply-parity-with-higher-priced-brands-arent-falsely-disparaging-claims-at-issue-challenged-by-schick/">case</a> in recent memory was Dollar Shave Club (and honestly, that was the funniest <a href="https://www.youtube.com/watch?v=ZUG9qYTJMsI">ad</a> we have ever seen), so maybe if it is a really good joke, NAD will side with the advertiser. Another fact that may have put this case over the top was the fact that the partygoers had looks of disgust on their faces when saying “tastes like gas/ass,” casting doubt that the takeaway would simply be the absence of a musky smoked flavor.

But “tastes like ass,” dear friends, is one we can add to the long list of phrases we know are most likely not going to be puffs. Please let us know if you ever pull this blog from somewhere the sun don’t shine to advise your client on use of this phrase. It’ll make our day way more than a fart joke ever would.

Butt isn’t it just puffery if it is funny?