False Statement in Advertising Act | Minn. Stat. §  325F.67

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 that receive higher scrutiny are those relating to price, testimonials, comparisons to competitors, health, get rich schemes, and ads directed at children.

Text of Minnesota’s False Statement in Advertising Act

The False Statement in Advertising Act provides as follows:

Any person, firm, corporation, or association who, with intent to sell or in anywise dispose of merchandise, securities, service, or anything offered by such person, firm, corporation, or association, directly or indirectly, to the public, for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, makes, publishes, disseminates, circulates, or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, label, price tag, circular, pamphlet, program, or letter, or over any radio or television station, or in any other way, an advertisement of any sort regarding merchandise, securities, service, or anything so offered to the public, for use, consumption, purchase, or sale, which advertisement contains any material assertion, representation, or statement of fact which is untrue, deceptive, or misleading, shall, whether or not pecuniary or other specific damage to any person occurs as a direct result thereof, be guilty of a misdemeanor, and any such act is declared to be a public nuisance and may be enjoined as such.

The duty of a strict observance and enforcement of this law and prosecution for any violation thereof is hereby expressly imposed upon the attorney general, and it shall be the duty of the county attorney of any county wherein a violation of this section shall have occurred, upon complaint being made, to prosecute any person violating any of the provisions of this section.

Minn. Stat. §  325F.67.

Puffery in Minnesota

Of course, advertisers can still offer their opinions or use humor in advertising. For example, “Best pizza in the universe” is puffery. “Puffery” is a defense in false and deceptive advertising cases. Puffery allows advertisers to create funny ads or opinion ads. But puffery has a very narrow application in court, applying to only those assertions that “any and all reasonable persons would know” is obviously not intended to be stated for its truth. If it can be shown that not everyone would understand, a court might find that puffery is not a valid defense to a false advertising violation.

Enforcement and Prosecution of Violations of the Minnesota False Advertising Act

The attorney general and county attorneys have the responsibility to enforce and prosecute 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 an 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.