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buzz;” “Quenches thirst, hydrates like a sports drink, and brings you back after a hard day’s night;” and “It’s a wicked mega hit that delivers twice the buzz of a regular energy drink.” A federal district court easily found these statements to be mere puffery. The statements were vague, subjective, and thus incapable of being measured, proven, or disproven. [ See Fisher v. Monster Beverage Corp. , No. EDCV 12–02188–VAP (OPX), 2013 WL 4804385 (C.D. Cal. July 9, 2013).] Compare : A manufacturer produced and sold infant-care products. The products’ labels indicated that the products were “natural, gentle, and hypoallergenic,” and the labels featured images of nature, such as flowers and green leaves. Notwithstanding, the products contained many artificial chemicals and ingredients (all listed in small print under ingredients), including phenoxyethanol, caprylyl glycol, cocamidopropyl betaine, and sodium citrate. On similar facts, a federal court found that the statement about the products being “natural, gentle, and hypoallergenic” were not puffery. A reasonable consumer would expect a “natural” product to contain no caustic, artificial chemicals. Interpreted in that light, the statement could be objectively proven or disproven. [ See Sebastian v. Kimberly-Clark Corp. , NO. 17cv442-WQH- JMA, 2017 WL 6497675 (S.D. Cal. Dec. 18, 2017).] 5. Advertisements as Creating Express Warranties An advertisement, like any other representation by a seller, can give rise to an express warranty. However, an extra measure of caution and scrutiny is warranted in evaluating advertisements here, because much of what appears in advertisements naturally tends to be puffery. Mere puffery, of course, cannot give rise to an express warranty. [ See Triple E, Inc. v. Hendrix and Dail, Inc. , 543 S.E.2d 245 (S.C. Ct. App. 2001); Affirmation of the Goods’ Value or the Seller’s Opinion or Commendation of the Goods, infra .] 6. Whether an Affirmation, Promise, Description, Model, or Sample Becomes Part of the Basis of the Bargain Generally, to create an express warranty, a representation— i.e. , an affirmation of fact or promise, description, model, or sample—must become part of the basis of the bargain. Much controversy here centers on the buyer’s reliance on the representation. Some courts do not require proof of reliance. Others do. Among these, some presume reliance unless the seller proves otherwise. Other courts demand that the buyer show reliance as part of her case-in- chief. The approach of the official comments to § 2-313 is that the seller’s representations should generally be deemed part of the basis of the bargain absent clear, affirmative proof to the contrary. Under this approach, a representation could be part of the basis of the bargain even if the buyer was unaware of it until after contracting ( e.g. , an advertisement the buyer saw after contracting), or if the buyer purchased the goods despite doubts as to the
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