This is the best real estate article ever written. You don't believe that, and you shouldn't. Which is precisely the reason that the statement -- that in some sense or other may be considered false -- is neither misleading nor deceptive. It fools no one. It is puffery.
Puffery, like most terms, is subject to varying definitions; but these seem to be the most common elements: It is an expression of opinion, not a representation of fact. It typically involves subjective qualities (taste, feel, appearance), not objective features. A reasonable person, from the audience to which the puffery is directed, will not take it seriously. It will not influence any reasonable person to consume, purchase, or engage the product, service, individual, or company that it appears to endorse. The key to puffery, then, is that those to whom it is directed will know that it is puffery.
The employment of puffery is not against the law. In a 1983 Policy Statement on Deception, the Federal Trade Commission wrote, "The Commission will not pursue cases involving obviously exaggerated or puffing representation, i.e. those that the ordinary consumers do not take seriously." At the same time, it acknowledged, "The term ‘Puffing' refers generally to an expression of opinion not made as a representation of fact. A seller has some latitude in puffing his goods, but he is not authorized to misrepresent them or to assign to them benefits they do not possess… Statements made for the purpose of deceiving prospective purchasers cannot properly be characterized as mere puffing."
(For a comprehensive examination of laws relating to puffery, see David Hoffman, "The Best Puffery Article Ever",Iowa Law Review,vol. 91, 2006)
The Realtor® Code of Ethics, which at Article 12 requires a "true picture" in all advertising, does not contain an exception for puffery. Nonetheless, on the basis of practice, it would appear that members assume that there is an implicit exception.
No one files an ethics complaint when someone advertises their listing as the "best value in town" or the "cutest cottage on the lake". (Though, in the latter case, they might complain if that cute cottage turned out to be a ½ mile up the road from the lake.) The public knows that terms such as "best value" and "cutest" are mere expressions of opinion. No one is deceived or misled by them.
But real estate agents advertise more than the properties they have listed; they also advertise themselves. In this arena there seems to be a greater propensity for sliding from exaggerating puffery ("the best agent in California!") to claims that apparently assert facts ("the top 1% in the nation!")
A few years ago, then Chief Counsel of the California Department of Real Estate, Wayne Bell, (who is now Commissioner) wrote an article entitled "Consumer and Industry Warning: False and Misleading Designations and Claims of Special Expertise, Certifications and/or Credentials". At that time, some readers may recall, the real estate industry was awash with experts and specialists. Mr. Bell wrote, "A growing number of individuals and companies, many of whom are unlicensed, purport to be ‘experts' in the area of short sales, ‘certified' forensic loan auditors, short sale ‘specialists', loan modification ‘specialists', loss mitigation ‘experts', ‘fraud investigators', and the like, and many of these designations and claims seem to be nothing more than marketing ploys by unscrupulous fraudsters to capitalize on the desperation and vulnerability of unsophisticated and/or financially strapped homeowners."
Calling yourself an expert or a specialist in those contexts can't be defended as puffery. It is not exaggeration where the audience knows it is exaggeration. Rather, unless verifiable, it is misrepresentation intended to mislead.
In that article, Mr. Bell also pointed out that the California Business and Professions Code prohibits falsely claiming designations, certifications, or membership. Even using the term "realtor", if one is not a member of the national and state associations, is a violation of the Code (§ 10177(e)). The penalty? License suspension or revocation.
The lesson? It may be ok to "puff" your listings; but be careful what you claim about yourself.
Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way. His email address is firstname.lastname@example.org.