Claims arising from the breach of an express warranty are common causes of action in product liability lawsuits today. Not surprisingly, manufacturers and sellers carefully craft the written warranties associated with their products. While these efforts can serve to limit liability, manufacturers and sellers of goods must remember that express warranties can also arise from their marketing and advertising efforts.

Under the Uniform Commercial Code, which governs sales of goods, any "affirmation of fact or promise relating to the goods which becomes the basis of the bargain" creates an express warranty. Therefore, everything from photographs and statements on a website to the sales pitch delivered on the showroom floor can potentially expose the manufacturer or seller (and in certain situations their licensors) to liability for personal injury arising from the use of the product.

Of course, not every statement or representation made during the course of a sale creates an express warranty. The key distinction is whether the representation is one of fact or opinion. A salesperson’s statement of her opinion of the product’s value is known as "puffing." Statements and representations which are merely puffing normally do not create express warranties. 

Theoretically, this distinction is easy to make. Practically, separating representations of fact from puffing can become quite difficult. For example, if an online used car dealer advertises that a particular used car is "in good shape," has the dealer expressly warranted that the car will perform adequately on the road? What if the website claims that the used car is "mechanically A-1?" While determining whether a statement is fact or puffing often requires careful examination of the relevant facts, the following examples help define the outer boundaries of each category.

Statements and representations of particular scientific and technical information normally are representations of fact which create express warranties. ("This truck can haul 20,000 pounds.") Similarly, specific statements and representations regarding the safety of a product usually are considered factual.  (A photograph of a child taking a particular cold medicine likely would create an express warranty that the medicine was safe for children.)

On the other hand, generalized statements about the product’s worth normally do not create express warranties. A salesman’s pitch is usually simply puffing. ("Give these golf clubs a try and you will be driving the ball like Tiger Woods.") Vague and exaggerated statements about a product’s quality are also normally merely puffing. ("This drill will never let you down.")

Marketing and advertising are necessary components of sales, and manufacturers and sellers of products should not be afraid to aggressively promote their products. On the contrary, by understanding that express warranties are often more than the pieces of paper in the box, manufacturers and sellers can maximize their marketing efforts while limiting their potential liability.