'America's Favorite Pasta' Is Mere Puffery—Not False or Misleading Advertising

The U.S. Court of Appeals for the Eighth Circuit affirmed the district court's ruling that the phrase "America's Favorite Pasta" was not actionable false or misleading advertising under the Lanham Act, but rather constituted non-actionable puffery as a matter of law. American Italian Pasta Company v. New World Pasta Company, Case No. 03-2065 (8th Cir. June 7, 2004),

American Italian sells dried pasta products with the phrase "America's Favorite Pasta" on its packaging. New World sent American Italian a cease and desist letter demanding that American Italian stop using that phrase. American Italian brought a declaratory judgment action, and New World counterclaimed for, among other things, violations of the Lanham Act. The district court dismissed New World's counterclaim and declined to exercise jurisdiction over its state law claims. New World appealed.

The Eighth Circuit affirmed, noting that a statement of fact is a specific, measurable claim or one that can be reasonably interpreted as being a factual claim (i.e., one capable of verification). A statement constitutes puffery, on the other hand, if it is not specific and measurable and cannot reasonably be interpreted as providing a benchmark by which the veracity of the statement can be ascertained. Applying this distinction, the court concluded that the phrase "America's Favorite Pasta," standing alone, is not a statement of fact because the term "favorite" connotes the subjective and vague notions of being well liked and admired; it does not provide an empirical benchmark by which the claim can be measured.

The court next considered whether the context in which the phrase "America's Favorite Pasta" is used transforms it into a statement of fact. The court found that it does not because the phrase as it is used on the...