False advertising applies to any material assertion, made to the public, which is untrue, deceptive or misleading. Anything in an advertisement that is subject to proof is an assertion, even the appearance of the product in a picture or the level of enjoyment the product causes. Types of assertions which receive higher scrutiny are those relating to price, testimonials, comparisons to competitors, health, get rich schemes and ads directed at children.
Of course, advertisers can still make funny ads with outrageous claims. “Puffery” is a defense in such cases. Puffery allows advertisers to create funny ads, but it has a very narrow application in court, applying to only those assertions which “any and all reasonable persons would know” is obviously not intended to be stated for its truth.#1 If it can be shown that not everyone would be in on the joke, a court might find that puffery is not a valid defense to a false advertising violation.
The attorney general and county attorneys have the responsibility for enforcement and prosecution of violations of the Minnesota False Advertising Act. Most consumer complaints go through their office, but private causes of action are allowed under the “private attorney general” statute (Minn. Stat. 8.31, subd. 3(a)). If the consumer has suffered injury, pecuniary damages are generally allowed, but they are not an essential element of a claim. Most false advertising claims can also be brought under the federal Fair Trade Act, which is applied mainly in non-binding arbitration in the Better Business Bureau’s National Advertising Division. Only rarely will a false advertising claim be heard in federal courts.
Michael Fleming, Advertising Law Basics, Stearing Clear of Misleading Practices, Minnesota CLE, Fraud, Misrepresentation & Deceptive Trade Practices (March 11, 2005).