Legal Ridicule in the Age of Advertisement: Puffery, Quackery, and the Mass Market

Abstract

Abstract This article examines the origins of the doctrine of puffery in Britain, in the first decades of its development during the nineteenth- and early twentieth centuries. The doctrine is a curious legal construct. Usually invoked as a defence, it identifies futile speech, typically of a seller, which does not give rise to liability. It operated, as it still does, in several fields of law. The analysis is not a traditional doctrinal one but rather a cultural legal study, which places the doctrine within the history of mass advertising, with two interrelated goals. First, following a review of developments based on primary sources, required given the scant literature on puffery, this article proposes a new interpretation of the doctrine as a legal mode of ridicule. While traditionally viewed as an instance of caveat emptor that supported commerce, the doctrine also involved a legal inferiorization of advertisements - taken as the paradigmatic instance of the sales pitch. Second, this article explores the interrelations between the history of law and the history of advertising, and demonstrates its productive potential for legal analysis with cases concerned with quack medicines. In the process, it offers a new reading of Carlill v Carbolic Smoke Ball and other cases. In conclusion, this article suggests that ridicule was a refusal to acknowledge the power of advertising and particularly its appeals to consumers’ imagination rather than reason, even as advertising was given legal licence.