President's message
Last week, AACUL hosted its annual (excepting 2020, of course) winter meeting. Leagues from all across the country gathered to share their experience, expertise, and even their enthusiasm as we stare down the end of another challenging year that forced us to learn more about the Constitution — does OSHA actually have the power to levy a vaccine mandate? Is it actually a mandate if there is a testing option? Is the US really a federation of sovereign states? Wait, what does OSHA actually do anyway? 2021 also forced us to become virologists — does high transmissibility lead to increased mortality? How does a virus actually mutate? And wait, why did the World Health Organization skip the Greek letters Nu and Xi to name the latest variant “Omicron”?
Could Senator Ted Cruz have been correct when he tweeted, “if the WHO is this scared of the Chinese Communist Party, how can they be trusted to call them out the next time they're trying to cover up a catastrophic global pandemic?” No, he was not correct. Senator Cruz was campaigning. In business terms, it’s called advertising. Advertisers employ a linguistic tactic called “puffery” to make their communications more appealing to the reader. A good and recent example of Puffery is when Starbucks campaign that its product is “the best coffee for the best you.” On the surface, it sounds like Starbucks is making the bold claim that it has the best coffee of all other coffees. But a closer reading shows that this slogan—like the good Senator’s tweet—is nothing more than a subjective opinion that is neither provable or disprovable. The legal standard for puffery, however, requires the advertiser to prove that no consumer would rely on it when making a purchasing decision. Unfortunately, such guardrails do not exist for political speech.
The term puffery comes from an 1892 English lawsuit against the Carbolic Smoke Ball company. The “Russian” or “Asiatic” flu pandemic of 1890 had finished killing over 1 million people and, capitalizing on the opportunity to sell an ounce of prevention, the company developed a rubber ball with a tube that the user filled carbolic acid powder and puffed it into their nose to protect against catching the flu. The company published advertisements offering a reward to people who caught the flu after using the smoke ball. Louisa Carlill used the smoke ball, promptly contracted influenza, and sued. Whether they recognized the pun or not, the Carbolic Smoke Ball company argued that its language was a “mere puff” — a bit of fanciful prose to grab the reader’s attention. They lost. This landmark case broke new ground in contract law and set the wheels in motion for the development of modern consumer protection laws. And now every law student in the world knows the name Louisa Carlill.
It is often easy to spot puffery in commercial and political speech: “Better ingredients, better pizza” (Papa Johns), or “[state employees will not be terminated or demoted] if they're doing a job necessary for the public and doing it well” (Gov. Rod Blagojevich, 2003). It is far harder to recognize the puffery we employ in our own speech. And puffery can be a useful tool when it is used to grab the consumer’s attention and build your brand identity (“the best coffee for the best you”). How do you think about your corporate speech? Do you use exaggeration or hyperbole? If not, why not? “We bring good things to life” and “Membership has its privileges,” after all.
As always,
Bruce
P.S. As has been widely reported, the WHO skipped the Greek letters Nu and Xi for two very good reasons. First, the WHO skipped the letter Nu to avoid confusion with the English word “new” (say this out loud: “the Nu variant”). Second, the WHO’s naming policy requires it to “avoid causing offense to any cultural, social, national, regional, professional, or ethnic groups.” Given that Xi is a common Chinese last name and that China is an especially relevant and sensitive player in the pandemic, it seems a rather easy call to skip the letter Xi.
