They can pretty much put it in any category they make up, so it makes their statement legit.

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Stating that "23 MPG is awesome" is no different than saying "this product is twice as fast as our prior one." It is not the truck manufacturer's opinion that the truck gets 23 MPG. It is their opinion that it is awesome. They are still stating a fact that can be disputed (23MPG). It can be assumed that Apple believes the speed of the network that their new phone runs on is also awesome.

The 23 MPG is determined in lab testing and will most likely not be achieved by a normal driver on the highway. Real world conditions will also differ from the tests used to determine the increase in speed of the network that the new iPhone runs on.

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"this product is twice as fast as our prior one."

Where's the opinion in that statement?

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So mixing an opinion and a fact makes it OK to be deceptive in advertising? If Apple said "this product is twice as fast as our prior one and it is great," that would be kosher?

People are arguing that the product is not as fast as the advertising claimed. That would be like someone arguing that their truck doesn't get 23 mpg, as claimed. Simply stating an opinion about a potentially misleading claim does not make it any less misleading.

Advertising claims like these have to be based on some sort of research, although results will vary depending on your driving habits or your location/cell phone signal. Apple can't control the conditions in which you use your phone just like Ford cannot control your driving habits/conditions.

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Claims based on "puffery" are generally acceptable and not actionable at law. So saying that your computer is the fastest computer on the market is usually okay and will not expose you to suit or action by the FTC.

Once you start putting specific figures out there, if those figures do not match real-world performance, you might be in trouble.

Next time you see a car commercial, read the fine print displayed when mileage is discussed. Usually, mileage is accompanied with a disclaimer that the claim is based on test conditions. I can put out an ad saying that my SUV gets 23 MPG. If I put a disclaimer saying it's based on testing and mileage may vary, it will be hard for action to sustain an action against me for false advertising.

Maybe Apple's "twice as fast" claim is actionable; maybe it's just puffery. I, personally, am in favor of class actions lawsuits for one reason:

Class action lawsuits are labor intensive and a lot of time is required to go through discovery. Often, there are hundreds of thousands - sometimes millions - of documents to go through prior to exchange. This requires attorneys. Specifically, temporary attorneys. Many of my friends work as temporary attorneys (a job that can pay well - NYC pays about $40 - $60 an hour). I'd like for my friends to have a job and, in the case of a few of them, be able to house and feed their families. The legal job market in NY is all screwed up from the financial collapse which flooded the market with attorneys after brokerage houses failed. My friends could stand the help.

Besides, Apple doesn't pay for Apple's legal fees; Apple's insurance company pays for Apple's legal fees.

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