The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss. MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir. May 2, 2023).
The plaintiff, on behalf of a putative class of consumers, challenged as false and misleading the defendant’s claims that its essential oil products are “therapeutic-grade” and confer certain health benefits. The district court dismissed the GBL claims, reasoning the statements at issue are non-actionable puffery.
The Second Circuit reversed, observing that the district court did not have the benefit of its recent decision in Int’l Code Council, Inc. v. UpCodes Inc., which established a critical distinction between two forms of puffery. 43 F.4th 46 (2d Cir. 2022). As explained in that opinion, the first form of puffery, “subjective statements of opinion which cannot be proven false,” is non-actionable as a matter of law. The second form, objective statements that can be proven true or false but are “so exaggerated that no reasonable buyer would be justified in relying on them,” generally requires a fact-intensive inquiry to determine if the challenged statement is puffery, unless it is “so patently hyperbolic that any allegations that it misled consumers are facially implausible.” For example, a statement representing that a particular bubblegum allows a chewer to “blow a bubble as big as the moon” is so patently hyperbolic that it is facially implausible a reasonable consumer could be misled, and such a claim would be subject to dismissal. By contrast, a statement that a chewer can blow the bubblegum “as big as [their] own head” could plausibly mislead a reasonable consumer, and thus the statement can be characterized as puffery only if evidence presented at summary judgment or at trial shows that “no reasonable buyer would be justified in relying on it in navigating the marketplace.”
Applying those principles, the Second Circuit held that the representations that the essential oil products are “therapeutic-grade” and impart certain health benefits are objective statements that could be proven true or false, and are not so hyperbolic that it would be facially implausible that a reasonable consumer was misled by them. As a result, the court concluded a fact-intensive inquiry as to how a reasonable consumer would interpret the statements was required to determine if the statements are puffery.