30 September 18, 2024 No. 655

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE ex rel Ellen F. ROSENBLUM, 

in her official capacity as Attorney General 

for the State of Oregon,

Plaintiff-Appellant

Cross-Respondent,

v.

LIVING ESSENTIALS, LLC,

 a Michigan limited liability company; and 

Innovation Ventures, LLC, 

a Michigan limited liability company,

Defendants-Respondents

Cross-Appellants.

Multnomah County Circuit Court

14CV09149; A163980

On remand from the Oregon Supreme Court, State ex rel 

Rosenblum v. Living Essentials, 371 Or 23, 529 P3d 939 

(2023).

Kelly Skye, Judge.

Submitted on remand June 15, 2023.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Carson L. Whitehead, Assistant 

Attorney General, filed the briefs for appellant-crossrespondent.

Lori Irish Bauman, Nena Cook, and Ater Wynne LLP; 

and Joel A. Mullin and Stoel Rives LLP filed the combined answering and cross-opening brief. Michael J. 

Sandmire, Nena Cook, and Ater Wynne LLP; and Joel A. 

Mullin and Stoel Rives LLP filed the reply brief on crossappeal. Michael J. Sandmire and Buchalter; and Rachel 

Lee and Stoel Rives LLP filed the supplemental briefs for 

respondents-cross-appellants.

Trenton H. Norris, Raqiyyah R. Pippins, Said O. Saba, Jr., 

and Arnold & Porter Kaye Scholer LLP; and R. Daniel Lindahl
Cite as 335 Or App 30 (2024) 31

and Bullivant Houser Bailey PC filed the brief amici curiae

for Counsel for Responsible Nutrition.

Before Aoyagi, Presiding Judge, Lagesen, Chief Judge, 

and DeVore, Senior Judge.

LAGESEN, C. J.

On appeal, general judgment reversed and remanded as 

to Count 1, otherwise affirmed; on cross-appeal, supplemental judgment reversed and remanded.
32 State ex rel Rosenblum v. Living Essentials, LLC

LAGESEN, C. J.

This case is on remand to us from the Supreme 

Court. It arises under the Unlawful Trade Practices 

Act (UTPA), ORS 646.605 to 646.656. See State ex rel 

Rosenblum v. Living Essentials, LLC, 371 Or 23, 529 P3d 

939 (2023) (Living Essentials II); State ex rel Rosenblum 

v. Living Essentials, LLC, 313 Or App 176, 497 P3d 730 

(2021) (Living Essentials I). For the reasons that follow, we 

reverse and remand the general judgment entered in favor 

of defendants as to Count 1 for the trial court to determine 

whether defendants made misrepresentations that violated 

ORS 646.608(1)(e) and, if so, what remedial measures are 

warranted. We otherwise affirm the general judgment. We 

adhere to our prior decision to reverse and remand the supplemental judgment denying defendants’ petition for attorney fees. In the event that defendants prevail on remand, 

the trial court should reconsider that request.

I. OVERVIEW

The previous decisions in this case set forth the facts, 

so we do not repeat them in full. We recount the procedural 

history of the case to identify the questions that are before us 

on remand. We then provide a brief overview of our resolution 

of those questions, before supplying our analysis of them.

At issue is the veracity of claims defendants have 

made in advertising their product, 5-hour ENERGY® (5-HE). 

The state contends that defendants have made numerous 

false, misleading, and confusing statements in violation 

of ORS 646.608(1)(b) and (1)(e). It seeks a range of remedies—both retrospective, in the form of civil penalties, and 

prospective, in the form of injunctive relief—for that alleged 

conduct. Following a bench trial, the trial court found in 

favor of defendants on all alleged violations and entered a 

general judgment in favor of defendants. The trial court later 

denied defendants’ petition for attorney fees and entered a 

supplemental judgment on the denial. The state appealed 

the general judgment, and defendants cross-appealed the 

supplemental judgment. We affirmed the general judgment 

and reversed and remanded the supplemental judgment. 

Living Essentials I, 313 Or App at 178.
Cite as 335 Or App 30 (2024) 33

With respect to the general judgment, we agreed 

with the trial court that the UTPA required the state to 

prove that defendants’ statements at issue were “material 

to consumer purchasing decisions” and that the state failed 

to do so. Living Essentials I, 313 Or App at 194, 196-97. As a 

result of that conclusion, we did not reach defendants’ argument that, absent a materiality element, ORS 646.608(1)(b) 

and (1)(e) would be facially invalid under Article I, section 8,

of the Oregon Constitution and the First Amendment to 

the United States Constitution. Id. at 178 n 1. In addition, 

with respect to Count 3 of the complaint, which was predicated on alleged misrepresentations about the decaffeinated 

5-HE, we rejected the state’s argument that the trial court’s 

findings meant that the state was entitled to entry of judgment in its favor on those counts. Id. at 197-204. As to attorney fees, we disagreed with the trial court’s conclusion that 

defendants’ assurance of voluntary compliance was unsatisfactory under ORS 646.632 and remanded for the trial court 

to determine, in its discretion, whether and what amount 

of attorney fees to award. Id. at 218-19. Given those conclusions, we also did not reach the state’s appellate challenges 

to additional, alternative bases on which the trial court had 

ruled in favor of defendants. Id. at 197.

The state petitioned for review, challenging our 

conclusion that ORS 646.608(1)(b) and (1)(e) required proof 

that false, misleading, or confusing representations were 

material to consumer purchasing decisions; the state did 

not seek review of our ruling with respect to decaffeinated 

5-HE on Count 3. The Supreme Court allowed review and 

reversed. The court concluded that the UTPA did not impose 

a requirement that the state prove that the statements at 

issue were “material to consumer purchasing decisions.” 

Living Essentials II, 371 Or at 44. The court then addressed 

defendants’ argument that the lack of a materiality requirement rendered the UTPA facially unconstitutional under 

Article I, section 8, and the First Amendment. The court 

concluded that the UTPA, as the court had construed it, was 

not facially unconstitutional. Id. at 46-57. The court withheld judgment on any “as-applied” analysis, noting that resolution of the issues on remand may render it unnecessary 

to consider the as-applied concerns. Id. at 57-58. For similar 
34 State ex rel Rosenblum v. Living Essentials, LLC

reasons, the court did not reach the issue of attorney fees. 

Id. at 59 n 14. The court remanded to us to identify and 

address the issues that remain as a result of its decision. Id. 

at 59.

On remand, the parties submitted supplemental 

briefs that have helpfully identified the issues that remain for 

us to resolve on remand. As to the state’s appeal, those issues 

are (1) whether, as to the first and second assignments of 

error which challenged whether ORS 646.608(1)(b) and (1)(e) 

contained a materiality element, a remand is required on 

Counts 1, 4, and 6; (2) whether, as to the third assignment 

of error, the trial court erred in concluding certain representations by defendant about the effects of consuming 

5-HE were nonactionable puffery; (3) whether, as to the fifth 

assignment of error, the trial court applied an incorrect 

standard of willfulness in rejecting the state’s claim for civil 

penalties on Count 1; (4) whether, as to the sixth assignment 

of error, the trial court applied an erroneous legal standard 

when it found that the challenged representations made by 

defendants were not misrepresentations; and (5) whether, 

with respect to the seventh assignment of error, the trial 

court applied an erroneous legal standard in finding that 

the challenged statements by defendants did not cause a 

likelihood of confusion. In addition, the state argues that, in 

view of the Supreme Court’s conclusion that the UTPA does 

not contain a materiality requirement, we should reconsider 

our resolution of the cross-appeal related to attorney fees 

and, in particular, should conclude that defendants’ assurance of voluntary compliance was inadequate.

Ultimately, as to the first issue identified above, 

we conclude that a remand on Count 1 is necessary as a 

result of the Supreme Court’s decision but that a remand 

is not required with respect to Counts 4 and 6 for reasons 

we will explain. On the second, issue, we conclude that the 

trial court erroneously concluded that certain statements by 

defendants were nonactionable puffery and remand for the 

court to determine whether those particular statements are 

false. We reject the remainder of the state’s claims of error.

Our conclusion that a remand is required on Count 1

means that we must address defendants’ first, third, and 
Cite as 335 Or App 30 (2024) 35

fourth cross-assignments of error. In their first crossassignment of error, defendants argue that the trial court 

erred when it did not require the state to prove “by a preponderance of the evidence that all reasonable experts in 

the field agree that the representations are false” in order to 

demonstrate falsity. We reject that argument as unfounded 

in the text of the UTPA or Oregon case law. In their third 

and fourth assignments of errors, defendants raise contingent as-applied challenges, under Article I, section 8, and the 

First Amendment, to the application of ORS 646.608(1)(b)

and (e) to their conduct, arguing that “[i]f this Court finds 

error in the Verdict on any grounds advanced by the State, 

then the judgment must be affirmed on the grounds that 

ORS 646.608(1)(b) and (e) are unconstitutional as applied.” 

We reject those challenges as inadequately developed and 

premature for our review.

Finally, as to the cross-appeal, we adhere to our 

prior decision and reverse and remand the supplemental 

judgment denying fees so that the trial court can reconsider 

the issue under the proper legal standard if defendants 

again prevail on remand.

II. ANALYSIS

A. First Assignment of Error: Whether the Supreme Court’s 

Determination that ORS 646.608(1)(e) Does Not Have 

a Materiality Element Requires a Remand on Counts 1 

and 4

We start with the first assignment of error. In that 

assignment of error, the state asserted that the trial court 

erred in ruling for defendants on Counts 1 and 4 when it 

determined that ORS 646.608(1)(e) required the state to 

demonstrate that the alleged misrepresentations regarding the noncaffeine ingredients (NCI) in 5-HE were material to consumer purchasing decisions. The Supreme Court 

concluded that the statute contained no such materiality 

requirement, and the remaining issue is whether that ruling requires a remand on either Count 1 or Count 4.

With respect to Count 1, the state argues that, as 

a result of the Supreme Court’s rejection of a materiality 

element, we must remand for the trial court to address the 
36 State ex rel Rosenblum v. Living Essentials, LLC

question it left unanswered before: whether defendants’ representations are false by implication and, as a result, actionable. See Rathgeber v. Hemenway, 335 Or 404, 412, 69 P3d 

710 (2003) (“An actionable representation under the UTPA 

may be express or implied.”).

In response, defendants assert that the state failed 

to plead or preserve a theory that defendants made implied 

misrepresentations. Therefore, defendants argue, no remand

is required as a result of the Supreme Court’s ruling 

because, in their view, Count 1 is completely resolved by the 

trial court’s (1) unchallenged ruling that none of defendants’ 

advertisements were inherently false and (2) its ruling that 

some of the statements were nonactionable puffery, a ruling 

that defendants contend should be affirmed. In support of 

the argument, they point to our discussion of our resolution 

of the state’s challenge to Count 3 in Living Essentials I. 

There, we explained that with respect to that count, which 

addressed defendants’ representations regarding decaffeinated 5-HE, “the state’s theory of liability in Count 3 was 

not that defendants falsely represented the duration of the 

effects from the NCI, but that the NCI have any effect on 

alertness or energy at all.” Living Essentials I, 313 Or App 

203 (emphasis in original; footnote omitted). We then upheld 

the trial court’s verdict on Count 3 because we determined 

that the trial court had found that defendants’ representations about the NCI in decaffeinated 5-HE were not false 

in the particular way alleged by the state on that count. Id. 

at 203-04. Defendants rely on that analysis to argue that 

we have already determined that the trial court found that 

defendants’ representations about the NCI were not false in 

the particular manner alleged by the state.

Having reviewed the record, we agree with the state 

that a remand is required with respect to Count 1 as a result of 

the Supreme Court’s decision. On the preservation point, contrary to defendants’ arguments, the state’s claims as pleaded, 

as well as its trial theory, were that defendants’ advertisements made representations that, in context, were misleading about the properties of the NCI in Original and ExtraStrength 5-HE, to the extent that the representations created 

the impression that the NCI contributed “in any meaningful 
Cite as 335 Or App 30 (2024) 37

way extra energy, alertness, or focus,” beyond that provided 

by the caffeine. The state expressly argued that, under the 

UTPA, actionable misrepresentations can be expressed or 

implied. The trial court did not address the state’s implication theory because it understood the misrepresentation test 

to contain a materiality requirement, making it unnecessary 

to address the misrepresentations-by-implication theory.

We also are not persuaded by defendants’ argument 

that our previous analysis of the state’s theory on Count 3 is 

dispositive on Count 1. For one, the trial court itself differentiated among the claims: “the truth or falsity of [d]efendants’ advertising claims and whether they are actionable as 

related to B-vitamins and amino-acids depends specifically 

on how each claim is presented.” Moreover, we do not view 

the state’s theory of liability with respect to caffeinated 5-HE 

to be the same as its theory of liability with respect to decaffeinated 5-HE. The former focused on representations implying that NCI added anything to the experience produced by 

caffeine; the latter focused on whether the NCI had any effect 

on energy at all. Accordingly, we remand to the trial court 

to determine whether defendants’ advertisements impliedly 

misrepresented the effects of the NCI in Original and ExtraStrength 5-HE, as alleged in Count 1 of the complaint, and 

for such further proceedings as may be warranted.

That leaves the issue of Count 4. In addition to 

finding that the state did not demonstrate materiality, the 

trial court found that the state failed to prove that the statements at issue in Count 4 were false. Because the verdict on 

Count 4 can be sustained on that basis, as we discuss more 

fully in addressing the state’s sixth assignment of error, the 

Supreme Court’s decision regarding materiality does not 

require a remand on Count 4.

B. Second Assignment of Error: Whether the Supreme 

Court’s Determination that ORS 646.608(1)(b) Does 

Not Have a Materiality Element Requires a Remand on 

Count 6

In the second assignment of error, as with the first, 

the state challenged the trial court’s determination that, 

with respect to Count 6, the state was required to prove, but 
38 State ex rel Rosenblum v. Living Essentials, LLC

failed to prove, that the allegedly misleading substantive 

message of defendants’ “Ask Your Doctor” ads was material to consumer purchasing decisions. The Supreme Court 

determined that the trial court erred in that respect. Living 

Essentials II, 371 Or at 38. In addition to finding that the 

state did not demonstrate materiality, the trial court found 

that the state failed to prove that the statements at issue in 

Count 6 were false. Because the verdict on Count 6 can be 

sustained on that basis, as we discuss more fully in addressing the state’s seventh assignment of error, the Supreme 

Court’s decision regarding materiality does not require a 

remand on Count 6.

C. Third Assignment of Error: Whether the Trial Court 

Erred in Determining that Claims About Feelings Were 

Nonactionable Puffery

In disposing of Count 1, the trial court ruled that 

one category of statements challenged by the state constituted nonactionable puffery:

“Defendants’ advertising claims that 5HE provides feelings of energy, alertness, and brightness or that it ‘packs a 

punch’ are subjective in nature, and such subjective measurements can only be undertaken by the consumer. Thus, 

I find that the following exhibits are non-actionable puffery 

under the UTPA: [list of exhibits].”

On appeal, the state argues that the trial court 

erred as a matter of law when it determined that defendants’ “claim that NCI in a bottle of [5-HE] provide ‘feelings’ of energy and alertness” was nonactionable puffery. In 

particular, in its opening brief, the state asserts that the 

following statements are actionable:

•	 “Its blend of B-vitamins, amino acids and enzymes help 

you feel bright, alert, and focused.” (Statement 1)

•	 “The blend of [B]-vitamins, amino acids, nutrients and 

caffeine in [5-HE] will give you the bright, alert feeling 

you need to really get into it.” (Statement 2)

•	 “It’s simple *** caffeine with vitamins and nutrients. It’s 

the combination that makes it great. *** Disclaimers: 

Provides a feeling of alertness and energy. Does not provide caloric energy.” (Statement 3)
Cite as 335 Or App 30 (2024) 39

•	 “It’s packed with [B]-vitamins for energy and amino 

acids for alertness and focus. There is zero sugar, zero 

herbal stimulants, and only as much caffeine as a cup of 

premium coffee. The two-ounce energy shot takes just 

seconds to drink and in minutes you’re feeling bright 

and alert. And that feeling lasts for hours.” (Statement 4)

•	 “It contains a powerful blend of B-vitamins for a feeling 

of energy and alertness.” (Statement 5)

•	 “[5-HE] contains a healthy, powerful blend of B-vitamins 

for energy, amino acids for focus and better mood, and 

enzymes to help you feel it fast.” (Statement 6)

The state asks us to “remand [C]ount 1 for the trial court to 

assess whether defendants’ representations about the ‘feelings’ of energy and alertness provided by a bottle of [5-HE] 

violate the UTPA.”1

In response, defendants argue that the issue is 

one of fact and, further, that the evidence supports the 

trial court’s findings that the statements were puffery. 

Defendants noted that the state itself argued in its opposition to summary judgment that its ORCP 47 E affidavit 

gave rise to a dispute of fact as to whether the statements 

were nonactionable puffery. Defendants argue that the trial 

court implicitly determined that the issue was one of fact 

and that the court’s judgment must be upheld on appeal 

because there is some evidence to support it.

In reply, the state acknowledges that the trial court 

treated the issue of puffery as one of fact. It asserts that 

the issue of puffery can be a mixed question of law and fact 

but argues that, with respect to the statements about feelings, the question is one of law. It reiterates its position that, 

as a matter of law, defendants’ representations about the 

“feelings” caused by the NCI are not puffery, requiring the 

trial court to make findings as to whether they are false 

representations.

1 We understand the state’s argument on appeal to contest the trial court’s 

puffery determination only insofar as the court determined that representations 

about the “feelings” caused by the NCI in 5-HE were puffery. The state does not 

argue, for example, that the trial court erred to the extent that it concluded that 

representations about 5-HE “pack[ing] a punch” were nonactionable puffery. 
40 State ex rel Rosenblum v. Living Essentials, LLC

For the reasons that follow, we conclude that the trial 

court erred when it concluded that all statements related 

to feelings were puffery. Some of the statements were not 

puffery as a matter of law, so we reverse and remand as to 

those statements for the trial court to assess whether they 

are false. As to the balance of the statements, the trial court 

correctly determined that the issue of puffery was one of fact 

and its factual findings that they are puffery are supported 

by the record.

As an initial matter, we address two procedural 

points. First, although the trial court ruled that a number 

of exhibits were nonactionable puffery, on appeal, the state 

identifies only six specific statements in its argument that 

the court erred in ruling that certain statements were puffery. For purposes of resolving this assignment of error, we 

consider only those statements identified by the state in its 

opening brief. It is not our role to scour the record on behalf 

of the state to identify any additional statements deemed 

by the trial court to be puffery and to then assess whether 

or not the ruling was erroneous with respect to the particular statement. See Sharma v. Providence Health & ServicesOregon, 289 Or App 644, 664, 412 P3d 202 (2018) (so noting).

Second, defendants’ arguments appear to suggest 

that the state conceded that the issue of puffery was one of 

fact in this case, making the trial court’s supported factual 

findings on the point dispositive of this appeal. We disagree. 

The state consistently took the position that defendants’ 

representations about the feelings caused by the NCI were 

not puffery but, instead, were specific, objectively verifiable 

representations as a matter of law. Only in the alternative 

did the state argue that its ORCP 47 E affidavit created 

a dispute of fact as to whether the statements were puffery. At trial, the state advanced the same argument. Its 

primary contention was that the statements, as a matter 

of law, were not puffery and that the factual issue for the 

trial court to resolve was whether the representations were 

false. Its alternative argument was that, to the extent the 

trial court viewed the issue as one of fact, the court should 

find in the state’s favor on that factual issue. Under those 

circumstances, we think the issue before us is whether any 
Cite as 335 Or App 30 (2024) 41

of the identified statements deemed by the trial court to be 

puffery are, as matter of law, not puffery.

Having addressed those procedural points, the next 

question we must resolve is whether the issue of puffery is 

one of law, fact, or sometimes law and sometimes fact.

“The concept of puffery is as old as our legal system.” United Concrete & Const., Inc. v. Red-D-Mix Concrete, 

Inc., 836 NW2d 807, 815 (Wis 2013) (citing Stefan J. 

Padfield, Is Puffery Material to Investors? Maybe We Should 

Ask Them, 10 U PA J Bus & Emp L 339, 350-53 (2008)). 

It rests on the principle that certain representations made 

in the context of sales are ones that no reasonable buyer 

would take seriously, such that the law will not subject a 

seller to liability for making such statements. Id. at 815-16 

(citing Kimball v. Bangs, 11 NE 113, 114 (Mass 1887) and 

Vulcan Metals Co. v. Simmons Mfg. Co., 248 F 853, 856 (2d 

Cir 1918)). Although the concept is ancient, no Oregon appellate decision addresses it. For that reason, we look to the 

decisions of other courts, of which there are many, for guidance on (1) whether the question is one of law or fact and

(2) the appropriate legal standard. See Allianz Global Risks 

v. ACE Property & Casualty Ins. Co., 367 Or 711, 740-41, 483 

P3d 1124 (2021) (looking to case law from other jurisdictions 

in the absence of Oregon case law addressing the issue at 

hand).

Having canvassed the case law, the most helpful 

discussion of the law-vs.-fact question that we have located 

comes from the Wisconsin Supreme Court. Analyzing 

whether a statement could be deemed puffery on summary 

judgment, the court explained that, where there is more 

than one reasonable inference to be drawn “as will often be 

the case, it should go to the [factfinder].” United Concrete & 

Const., Inc., 836 NW2d at 818. But “[w]hen there is no reasonable interpretation that would evidence puffery, it wastes 

the taxpayers’ and the parties’ time and money, not to mention scant judicial resources, to assemble a jury and submit 

to it the question.” Id. The court further explained that its 

approach was consistent with the decisions of other courts 

and that “[a] substantial majority of decisions resolving the 

puffery question do not purport to apply a blanket rule; they 
42 State ex rel Rosenblum v. Living Essentials, LLC

simply determine, with reference to the specific facts and 

allegations * * *, whether the question can be resolved as a 

matter of law by the court or instead requires consideration 

of the [factfinder].” Id. at 819-20.2

That approach appears to us to be consistent with 

the cases cited by the court to support its holding, as well as 

those cited to us by the parties, including Cook, Perkiss and 

Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F2d 

242, 245-46 (9th Cir 1990), the Ninth Circuit case on which 

the state places the most weight. We find that approach persuasive and have not identified any principles of Oregon law 

with which it conflicts. Accordingly, we hold that the question of whether a statement is puffery is a question of fact, 

unless, as matter of law, all reasonable factfinders would 

have to reach the same conclusion as to whether the statement was or was not puffery.

Turning to the legal test for puffery, in the absence 

of any Oregon case law, we again look to the decisions of 

other courts for guidance. Although courts phrase it in different ways, they appear generally to be in accord as to the 

characteristics that make a statement puffery. In Cook, 

Perkiss and Liehe, Inc., the case relied on by the state, the 

Ninth Circuit canvassed cases describing puffery, ultimately concluding that puffery involved general, exaggerated, or subjective statements on which reasonable consumers would not rely: “The common theme that seems to run 

through cases considering puffery in a variety of contexts 

is that consumer reliance will be induced by specific rather 

than general assertions.” 911 F2d at 246. The Connecticut 

Supreme Court identified a similar standard, stating that 

the key considerations are whether a statement “is unlikely 

2 The court observed, in addition, that a “number of courts have refrained 

from drawing a bright line around puffery in terms of whether it presents a question of fact or of law, recognizing, as we do, that while it usually is a question of 

fact it can at times be a question of law, and that courts should apply the usual 

summary judgment standard to figure out which label fits more closely in a given 

case.” Id. at 819 (citing Donald Braman et al., Some Realism About Punishment 

Naturalism, 77 U Chi L Rev 1531, 1571 n 146 (2010) (“Many of the issues in 

puffery * ** are often resolved as matters of law rather than fact.”)); Snyder v. 

Farnam Cos., 792 F Supp 2d 712, 723 (D NJ 2011); Redmac, Inc. v. Computerland 

of Peoria, 489 NE 2d 380, 382 (Ill App Ct 1986); Park Rise Homeowners Ass’n v. 

Resource Const. Co., 155 P3d 427, 435 (Colo App 2006); In re Level 3 Commc’ns, 

Inc. Sec. Litig., 667 F3d 1331, 1340 (10th Cir 2012)).
Cite as 335 Or App 30 (2024) 43

to induce reliance and is insusceptible to being proved true 

or false.” NetScout Sys., Inc. v. Gartner, Inc., 223 A3d 37, 55 

(Conn 2020).

The Wisconsin Supreme Court’s analysis is comparable. That court examined the history of puffery, observing 

that the doctrine arose to insulate sellers from liability for 

those types of exaggerated, subjective statements that are 

fair to expect merchants to make but that would not be reasonable for a buyer to take seriously. United Concrete, 836 

NW2d at 815-17 (quoting Kimball, 11 NE at 114 (“The law 

recognizes the fact that men will naturally overstate the 

value and qualities of the articles which they have to sell. All 

men know this, and a buyer has no right to rely upon such 

statements.”); and Vulcan Metals Co., 248 F at 856 (observing that there are “some kinds of talk which no man takes 

seriously, and if he does he suffers from his credulity”)). The 

court then explained that it had adopted the “same essential principles” into its common law. United Concrete, 836 

NW2d at 816. “In our state, a salesperson engages in puffery when he gives voice to the exaggerations reasonably to 

be expected of a seller as to the degree of quality of his product, the truth or falsity of which cannot be precisely determined.” Id. (internal quotation marks omitted).

Drawing from those cases, and the cases cited in 

them, we conclude that a seller’s statements constitute puffery if they are general or subjective, that is, insusceptible 

to being proven true or false, such that they are unlikely to 

induce consumer reliance. On the flip side, statements that 

are not puffery, and thus are actionable, are specific and 

objective, that is, susceptible to being proven true or false, 

such that they are likely to innduce consumer reliance.

We now apply those legal standards to the facts of 

this case. As noted, the trial court ruled that statements 

representing that 5-HE caused particular “feelings” or that 

it “packed a punch” were nonactionable puffery. It did so 

after concluding that the issue on this record was one of 

fact. Then, relying on the testimony of defendants’ expert, 

Beales, the court found that the representations about the 

feelings caused by 5-HE were not objective representations 

and also were not likely to deceive consumers. Beales, who 
44 State ex rel Rosenblum v. Living Essentials, LLC

had worked at the Federal Trade Commission (FTC) evaluating claims of deceptive advertising, explained that the 

FTC had issued a policy statement concluding that “certain 

kinds of claims are unlikely to mislead consumers acting 

reasonably under the circumstances and for that reason the 

commission will not generally pursue claims that involve 

subjective characteristics, such as taste, feeling, appearance 

and the like.” The policy statement further concluded that 

“deception is particularly unlikely where there is an inexpensive, frequently purchased product” because “consumers 

can tell for themselves” how the product works and will not 

buy the product again if it does not work.

The question for us is whether the trial court legally 

erred in taking that approach. The state argues that it did, 

contending that we should conclude as a matter of law that 

the statements were not puffery. Defendants argue that the 

trial court permissibly concluded that the issue was one of 

fact and that the court’s factual findings are supported by 

Beale’s testimony, requiring us to affirm.

With respect to four of the statements listed above, 

we agree with defendants that (1) the trial court correctly 

determined that the issue of puffery was one of fact and

(2) the court’s factual findings that the statements were 

puffery are supported by the record. Those statements are:

•	 “Its blend of B-vitamins, amino acids and enzymes help 

you feel bright, alert, and focused.” (Statement 1)

•	 “The blend of [B]-vitamins, amino acids, nutrients and 

caffeine in [5-HE] will give you the bright alert feeling 

you need to really get into it.” (Statement 2)

•	 “It’s simple *** caffeine with vitamins and nutrients. It’s 

the combination that makes it great. *** Disclaimers: 

Provides a feeling of alertness and energy. Does not provide caloric energy.” (Statement 3)

•	 “It contains a powerful blend of B-vitamins for a feeling 

of energy and alertness.” (Statement 5)

As to those statements, we conclude that reasonable factfinders could differ as to precisely what those statements communicate about the effect of 5-HE (for example, 

what does it mean to have “the bright alert feeling you need 
Cite as 335 Or App 30 (2024) 45

to really get into it”?); how general or specific they are; and, 

most significantly, on whether the statements are likely to 

induce reliance. In addition, although there is evidence in 

the record to support a finding that those statements were 

not puffery, there is also evidence in the record—Beale’s

testimony—to support the trial court’s findings that they 

are. For that reason, with respect to those statements, the 

trial court did not err in treating the issue of puffery as one 

of fact and, further, did not err in finding that they were 

puffery based on the expert testimony.

With respect to the two remaining statements identified by the state, we conclude as a matter of law that those 

statements are not puffery. Those statements are:

•	 “It’s packed with [B]-vitamins for energy and amino 

acids for alertness and focus. There is zero sugar, zero 

herbal stimulants, and only as much caffeine as a cup 

of premium coffee. The two-ounce energy shot takes just 

seconds to drink and in minutes you’re feeling bright and 

alert. And that feeling lasts for hours.” (Statement 4)

•	 “[5-HE] contains a healthy, powerful blend of B-vitamins 

for energy, amino acids for focus and better mood, and 

enzymes to help you feel it fast.” (Statement 6)

Unlike the other statements, which are more general in their descriptions of the effect and function of the 

NCI, thereby creating an issue of fact as to whether they are 

puffery, these two statements make specific representations 

about the particular effects of the component parts of the 

NCI, telling consumers that B-vitamins affect energy and 

that amino acids affect focus and mood. Statement 6 makes 

an additional specific representation about the NCI, telling 

consumers that enzymes affect the rate at which the product’s effect is felt. In addition, Statement 4 explicitly tells 

consumers how long they can expect the product’s effect to 

last (hours). That representation, when viewed in the context of the representation that 5-HE contains only as much 

caffeine as a cup of premium coffee, is the sort of statement 

that a reasonable consumer would rely on when deciding 

between coffee and 5-HE as a source of caffeine. Contrary 

to the trial court’s conclusion that the reference to “feelings” 
46 State ex rel Rosenblum v. Living Essentials, LLC

renders the statements subjective, read in context, defendants’ representations promise the consumer a physiological 

effect; whether the product has that effect is something that 

can be objectively tested. B-vitamins either supply energy, 

or they do not. Amino acids either improve focus and mood, 

or they do not. Enzymes either affect the rate at which the 

other ingredients in 5-HE affect the consumer, or they do 

not. The promised effect of the product either lasts for hours, 

or it does not. Unlike the four statements above, about 

which reasonable factfinders could have different views as 

to whether they were puffery, these two statements are so 

specific and objective in their representations about how the 

ingredients of 5-HE operate, that we conclude as a matter of 

law that a reasonable consumer would credit them and rely 

on them in making a decision about whether to purchase 

5-HE. For that reason, they are not puffery. On this point, 

we note that Division 1 of the Washington Court of Appeals 

reached the same conclusion about a similar representation 

about how the NCI work, and we agree with that court’s 

analysis. See State v. Living Essentials, LLC, 436 P3d 857, 

863, 870 (Wash Ct App Div 1 2019) (concluding that 5-HE’s 

advertising claim that “the key vitamins and nutrients in 

[5-HE] work synergistically with caffeine to make the biochemical or physiological effects last longer than caffeine 

alone” was not puffery because the representations were 

“factual representations that are capable of being tested”).

We therefore reverse on the third assignment of 

error and remand to the trial court to determine whether 

the two statements that we have determined are not puffery 

are false, as the state alleges.

D. Fifth Assignment of Error: Whether the Trial Court 

Applied an Erroneous Legal Standard for Willfulness

With respect to Count 1, the state sought civil penalties in connection with the alleged UTPA violations. To 

obtain civil penalties, it was required to prove that the alleged 

violations were willful, that is, that “the person committing 

the violation knew or should have known that the conduct 

of a person was a violation.” ORS 646.605(10) (defining willfulness); ORS 646.642(3) (requiring proof of willfulness as a 

prerequisite to imposition of civil penalties). In other words, 
Cite as 335 Or App 30 (2024) 47

the state was required to prove that defendants were at least 

negligent. Stewart v. Albertson’s, Inc., 308 Or App 464, 492, 

481 P3d 978, rev den, 368 Or 138 (2021) (explaining that “a 

‘willful’ violation ** * has been interpreted for UTPA purposes to mean negligence”). Although the trial court ultimately did not find that the state had proved any UTPA violations, negligent or otherwise, it determined further that, 

if any violations occurred, those violations were not willful.

The state challenges that conclusion regarding 

willfulness. It asserts that the trial court imposed an erroneous—and higher—legal standard for willfulness. It contends that the trial court’s explanation of its verdict shows 

that “the court concluded that industry practices established 

the standard of care for whether defendants knew or should 

have known of the violations” and also that the court erroneously “concluded that defendants had no obligation to assess 

the validity of the study it commissioned and published, so 

producing advertisements based on the study could not have 

been a willful violation.”

We are not convinced that the trial court applied a 

wrong legal standard to determine willfulness. The court 

correctly recited the standard for willfulness under the 

UTPA, explaining that it required proof that “[d]efendants 

knew or should have known that their conduct was a violation.” The court noted that the state argued that the court 

should infer willfulness from “[d]efendants’ lack of scientific 

expertise and failure to consult with anyone knowledgeable 

about the effects of B-vitamins, amino-acids and enzymes 

on human cognition when creating the product.” The court 

then explained why it was not persuaded, on the record 

before it, that defendants’ lack of consultation meant that 

they should have known that the 5-HE did not work as represented. Although defendants’ evidence of industry practices no doubt played a role in the court finding the state’s 

case unpersuasive, the court’s reliance on that evidence does 

not indicate a misunderstanding of the UTPA willfulness 

standard, in view of the arguments advanced by the state.3

Accordingly, we reject the state’s fifth assignment of error.

3 The state does not argue that the evidence of industry practices is irrelevant to the question of whether someone in defendants’ position knew or should 

have known their representations were false.
48 State ex rel Rosenblum v. Living Essentials, LLC

E. Sixth Assignment of Error: Whether the Trial Court 

Applied an Erroneous Legal Standard in Denying Relief 

on Count 4

In the sixth assignment of error, pertaining to 

Count 4, the state argues that the trial court applied an 

erroneous legal standard in assessing whether defendants’ 

“Ask Your Doctor” (AYD) advertising campaign contained 

misrepresentations under ORS 646.608(1)(e). That paragraph provides that a person engages in an unlawful trade 

practice if, “in the course of that person’s business, vocation, 

or occupation, * ** the person represents that goods have 

** * approval *** that [they] do not have.” Id. For purposes 

of the UTPA, a “representation” includes “any assertion by 

words or conduct” and also “a failure to disclose a fact.” ORS 

646.608(2).

Defendant’s AYD advertisements were television 

and online ads that, with some variation, transmitted the 

following message:

“We asked over 3,000 doctors to review [5-HE] and what 

they said is amazing. Over 73% who reviewed [5-HE] said 

that they would recommend a low-calorie energy supplement to their healthy patients who use energy supplements. 

73%. [5-HE] has four calories and is used over 9 million 

times a week. Is [5-HE] right for you? Ask your doctor. We 

already asked 3,000.”

Defendants arrived at the 3,000-doctor count by 

combining the results of two different surveys. The first 

was a blind online survey of 503 doctors who were asked to 

identify characteristics of an energy drink that they would 

recommend, and the second was an in-person survey where 

2,659 doctors were asked whether they would recommend 

5-HE specifically. The results of the first survey indicated 

that 73.6 percent of the doctors would recommend a lowcalorie energy product to their healthy patients who already 

used energy supplements and that 47.7 percent would specifically recommend 5-HE. In the second, 90 percent of doctors 

would recommend a low-calorie energy supplement to their 

patients who use energy supplements, and 74 percent would 

recommend 5-HE specifically.
Cite as 335 Or App 30 (2024) 49

The state argued that the AYD campaign ran afoul 

of ORS 646.608(1)(e) by falsely representing that 3,000 doctors had been asked about 5-HE when 3000 doctors had 

not been asked about 5-HE specifically. In support of the 

claim, the state presented the testimony of an expert in 

consumer research who opined that it was inappropriate to 

combine the results of the two surveys because the surveys 

were not scientific—raising questions about the reliability of the results—and because the surveys used different 

methodologies.

The trial court, in discussing the evidence, noted 

that the AYD ads could be misleading because the first sentence suggests that all 3,000 doctors were asked whether 

they recommend 5-HE specifically when only 2,659 were 

asked that question. The trial court also noted that the second sentence referred to the results of the online survey of 

503 doctors, but, in context, implied that it was referring to 

the results of a 3,000-doctor survey. Notwithstanding those 

features, the court found that the AYD ads did not purport 

to have been based on scientific or unbiased methodologies; 

found, based on expert testimony, that consumers expect 

bias in a survey procured by an advertiser; and concluded 

that the AYD ads did not breach the UTPA’s prohibition on 

false representations because the “substantive message” of 

the ads was not misleading.

On appeal, the state asserts that the trial court 

based its ORS 646.608(1)(e) ruling on an incorrect legal 

standard. In support of that argument, the state points 

to the court’s discussion of consumer expectations of bias, 

arguing that consumer expectations are irrelevant to the 

question whether a representation is true or false. The state 

asserts further that the trial court’s consideration of consumer expectations essentially added an element to ORS 

646.608(1)(e) that the legislature did not include.

Having reviewed the court’s decision, we are not 

persuaded by the state’s arguments. In particular, we are 

not persuaded by the state’s argument that the court’s discussion of the consumer-expectations evidence demonstrates 

that the court applied an incorrect standard in assessing 
50 State ex rel Rosenblum v. Living Essentials, LLC

the state’s claims that the AYD ads falsely represented that 

5-HE had the approval of doctors that it did not have.

First, although the wording of the AYD ad might be 

described as slippery, it is difficult to conclude that the ad 

falsely represented that 5-HE had the approval of doctors 

because the ad does not say that. The ad states that “over 73%” 

of doctors “would recommend a low-calorie energy supplement to their healthy patients who use energy supplements” 

and does not state that they would recommend 5-HE. The 

representation about “over 73%” of doctors surveyed would so 

recommend also appears to reflect correctly the results of the 

two surveys. In the first survey, 73.6 percent of doctors would 

recommend such a supplement, and in the second, 90 percent would recommend such a supplement. In both instances, 

more than 73 percent of doctors generally would recommend a 

low-calorie energy supplement to patients already using supplements. This tends to undercut the state’s argument that we 

should infer that the court misinterpreted ORS 646.608(1)(e)

to require the state to prove that an ad is misleading, taking 

into account consumer expectations.

Second, in context, the court’s discussion of consumer expectations appears directed to the materiality 

element the court had read into the statute, but which the 

Supreme Court has since rejected. As discussed, the court 

had concluded that the state needed to demonstrate that 

any misrepresentation was material to consumer purchasing decisions, and evidence of consumer expectations would 

have been relevant to the court’s materiality assessment. 

Under those circumstances, the state has not shown that 

the court’s determination rested on an erroneous legal 

standard.

F. Seventh Assignment of Error: Whether the Trial Court 

Applied an Erroneous Legal Standard in Denying Relief 

on Count 6

In the seventh assignment of error, pertaining to 

Count 6, the state argues that the trial court applied an erroneous legal standard in assessing whether the AYD campaign—the same ads discussed above—caused a likelihood 

of confusion or misunderstanding under ORS 646.608(1)(b).
Cite as 335 Or App 30 (2024) 51

That paragraph provides that a person engages in an 

unlawful trade practice under the UTPA if the person 

“causes a likelihood of confusion or of misunderstanding 

as to the source, sponsorship, approval, or certification of” 

the goods. Id. The Supreme Court has explained that prohibited conduct under the paragraph occurs when a person

“(1) produces or brings about (2) a probability (3) that another 

person will experience either (i) a lack of understanding or 

a misinterpretation, or (ii) a state of being that involves 

mental confusion, or being discomfited or disconcerted, or 

a diminished ability to distinguish or choose, regarding (4) 

the source, sponsorship, approval, or certification of *** 

goods.” Living Essentials II, 371 Or at 36-37.

In the trial court, the state argued that the AYD 

campaign caused a likelihood of confusion or of misunderstanding because the advertisements “presented the results 

of a survey in a deceptive manner that would lead consumers to believe doctors had approved of [5-HE] in a way that 

they had not.” In support of that argument, the state pointed 

to evidence in the record showing that, of consumers who 

heard the AYD ad, 33.8 percent took away a message that 

doctors actually recommended 5-HE and 42.4 percent took 

away an incorrect message, such as doctors recommending 

a low-sodium energy supplement, which is not part of the ad. 

Rejecting that argument, the trial court determined that 

the AYD ad does not cause confusion or misunderstanding because the misleading nature of the ad “can only be 

gleaned by implication, as the plain [wording] of the ad is 

clearly limited.” The trial court incorporated by reference 

its analysis for Count 4 (the subject of the sixth assignment 

of error on appeal) and found the substantive message of the 

AYD ad to not be misleading or confusing.

On appeal, the state argues that the trial court’s 

analysis demonstrates that it applied the wrong legal standard in rejecting the state’s claim on Count 6. It points to 

the fact that “the trial court did not expressly address [the 

causation] element in its verdict” and further argues:

“Nor did the court explain why the state’s evidence did not 

support a finding that defendants caused a likelihood of 

confusion when the state put on evidence that 33.8% of 
52 State ex rel Rosenblum v. Living Essentials, LLC

individuals who viewed the ad would have received the 

message that doctors in fact recommended [5-HE] and 

another 42.4% of consumers received a message that was 

not supported by the plain text of the ad.”

The state suggests that based on that evidence “it is clear” 

that the ad not only created a likelihood of confusion but 

that a “majority of consumers misunderstood or were confused by it.”

As with the sixth assignment of error, we are not 

convinced that the court’s order demonstrates that it applied 

an incorrect legal standard in denying relief on Count 6. 

Although somewhat opaque, the court’s discussion of the 

evidence suggests to us that the court was not persuaded 

that defendant’s AYD ad, as distinct from reader inattention 

or other causes, was the cause of any confusion about the 

ad’s message about what doctors had approved. The state’s 

specific claim was that the ad caused a likelihood of confusion as to whether doctors approved 5-HE in a way that 

they had not. The trial court expressly observed that “the 

plain language of the ad is clearly limited,” an observation 

that indicates that the court was not convinced that the ad 

itself—rather than other potential causes—was the cause 

of any likely confusion.4 The court’s discussion of the expert 

testimony points the same direction:

“The State further relies on Ms. Butler’s consumer 

survey to suggest that the AYD ad is misleading because 

33.8% of consumers surveyed indicated the message they 

received from the ad was that doctors recommend 5HE. 

However, another 42.4% of consumers indicated that the 

ad conveyed another message such as doctors recommend 

a low-sodium energy supplement. The remaining consumers either received the correct message from the ad or were 

unable to identify a message.

“Ms. Butler explained the response to the ‘noise questions,’ which are questions about information unrelated 

to the advertisement, [are] designed to detect people who 

are merely guessing. The low sodium question is a noise 

4 We do not mean to suggest that a plainly worded ad cannot, as a matter of 

law, cause a likelihood of confusion; as was the case here, a party may produce 

evidence that would permit an inference that an ad with straightforward text 

that causes confusion as a factual matter.
Cite as 335 Or App 30 (2024) 53

question. Ms. Butler acknowledged that ‘some studies 

showed 20 to 30 percent of people are taking away ... a 

message—or a message from an ad that’s not present ... 

that it’s a known fact that this phenomen[on] can occur.’ 

Howard Beales confirmed this phenomenon.”

That discussion also tends to suggest that the trial 

court simply was not persuaded that defendants’ ad was the 

cause of any likelihood of confusion about what the doctors 

had approved, given the possibility of other causes, including the phenomenon described by Butler and confirmed by 

Beales. To be sure, the state’s evidence in this case may 

have permitted the trial court to find that defendants’ ad 

caused a likelihood of confusion. That the evidence may 

have permitted the court to find causation, however, does 

not mean that, on this record, the court was compelled to 

find that defendants’ representations caused a likelihood of 

confusion, in view of the other evidence regarding potential 

sources of confusion. For that reason, the parts of the trial 

court’s ruling that the state points to do not persuade us 

that the trial court applied an incorrect legal standard. In 

particular, they do not persuade us that the court misunderstood the legal standard that applies to the causation element of a claim under ORS 646.608(1)(b).

G. First Cross-Assignment of Error: Whether, to Prove 

Falsity of a Scientific Representation for Purposes of ORS 

646.608(1)(e), a Plaintiff Must Show that All Reasonable 

Experts Agree that the Representation is False

Our conclusion that we must remand for further 

proceedings on Count 1 requires us to address defendants’ 

first cross-assignment of error. In that cross-assignment of 

error, defendants contend that, because scientific expertise 

is required to evaluate the veracity of their representations, 

to prove that their statements about the properties of 5-HE 

violated ORS 646.608(1)(e), the state was required to prove 

that “all reasonable experts in the field agree” that 5-HE 

does not have the “characteristics, ingredients, uses, benefits, quantities or qualities” that defendants represented 

that 5-HE has. In support of that standard, defendants 

primarily rely on a Fourth Circuit case, In re GNC Corp., 

789 F3d 505, 516 (4th Cir 2015). There, the court held that, 
54 State ex rel Rosenblum v. Living Essentials, LLC

to state a claim as to whether representations about certain characteristics of nutritional supplements were false, 

the plaintiffs were required to allege facts that would allow 

finding that all reasonable experts agreed that the representations were false. Id. at 516. They urge us to adopt that 

standard as a matter of Oregon law and to direct the trial 

court to apply that standard on remand.

We are not persuaded. Defendants point to nothing 

in the text, context, or legislative history of the UTPA that 

suggests that the legislature intended for a UTPA plaintiff to have to prove that all reasonable experts agree on 

whether a statement is a misrepresentation about a product’s characteristics. Had the legislature intended to impose 

such a standard, or otherwise limit the factfinder’s ability to 

determine whether a representation is true based on whatever competing evidence is presented, we think the legislature would have been express about it. See, e.g., Living 

Essentials II, 371 Or at 43-44 (rejecting argument that a 

UTPA plaintiff must prove that alleged false or misleading 

representations were material to consumer purchasing decisions, where unambiguous text of statute did not require 

proof of materiality, and neither context nor legislative history provided support for argument that the court “should 

infer that the legislature implicitly intended to incorporate 

that requirement from other sources of law the legislators 

did not discuss”).

Beyond that, to the extent federal court decisions 

are relevant to the construction of the UTPA, the state points 

out that the Ninth Circuit, among other courts, has rejected 

the Fourth Circuit’s approach. In Sonner v. Schwabe N. Am., 

Inc., 911 F3d 989, 993 (9th Cir 2018), the court declined to 

adopt the GNC reasoning when considering whether a plaintiff had presented sufficient evidence to create a dispute for 

the factfinder as to whether the defendant’s representations 

about a nutritional supplement were false. The court ruled 

that “[i]f the plaintiff’s evidence suggests that the products 

do not work as advertised and the defendant’s evidence suggests the opposite, there is a genuine issue of material fact 

for the factfinder to decide.” Id.
Cite as 335 Or App 30 (2024) 55

Although defendants argue that the Ninth Circuit’s 

ruling is confined to the summary judgment phase of the 

proceeding and that plaintiffs would still have to satisfy the 

“all reasonable experts” standard at trial, the court’s reasoning does not point in that direction. But even if it did, we 

remain unconvinced that the federal cases on which defendants rely supply a basis for inferring that the UTPA implicitly requires plaintiffs to satisfy the “all reasonable experts” 

standard when proof of a representation’s falsity requires 

scientific evidence.

H. Third and Fourth Cross-Assignments of Error: Whether 

ORS 646.608(1)(e), As Applied to Defendants, Violates 

Article I, Section 8, or the First Amendment

In their third and fourth assignments of error, defendants argue that it would violate their rights under Article I, 

section 8, and the First Amendment to hold them liable for 

UTPA violations. They raise both facial and as-applied challenges. The Supreme Court rejected defendants’ facial challenges under both the Oregon and the federal constitutions. 

Living Essentials II, 371 Or at 44-59. The court did not reach 

defendants’ as-applied challenges, reasoning that the parties’ arguments were not “well-developed” and also that the 

disposition on remand might obviate the need to address 

the as-applied challenges. Accordingly, we must address the 

disposition of the as-applied challenges.

For reasons similar to those stated by the Supreme 

Court, we decline to resolve those challenges. The parties’ 

arguments in support of the as-applied challenges remain 

undeveloped. In particular, it is not clear to us whether defendants are arguing solely that it would violate their constitutional rights to impose monetary penalties for their alleged 

false and misleading representations, or whether they are 

also arguing that it would violate their rights to bar them 

from continuing to make representations that are found to 

be false or misleading. Additionally, because the trial court 

has not yet found, and may never find, that defendants violated the UTPA, it would be premature and speculative for 

us to evaluate defendants’ as-applied challenges. Absent 

the concrete details about what violations defendants were 

found to have committed, and what remedies were ordered, 
56 State ex rel Rosenblum v. Living Essentials, LLC

we would be advising on significant principles of constitutional law without the benefit of the facts, and we decline to 

do so.

I. Cross-Appeal: Whether the Trial Court Erred in 

Determining that Defendants Were Not Entitled to 

Mandatory Attorney Fees under ORS 646.632(8)

The first time this case was before us, defendants 

cross-appealed the supplemental judgment denying defendants’ request for attorney fees under ORS 646.632(8). That 

subsection provides for mandatory fees to a prevailing UTPA 

defendant so long as the defendant provided a satisfactory 

assurance of voluntary compliance (AVC) to the state prior 

to the state’s lawsuit alleging violations of the UTPA. Living 

Essentials I, 313 Or App at 204-05. The trial court concluded 

that defendants’ AVC was not satisfactory and denied attorney fees for that reason. Defendants assigned error to that 

conclusion, arguing that their AVC was satisfactory as a 

matter of law such that the state had no legal basis to reject 

it. Id. at 208.

We agreed with defendants for two reasons. First, 

we determined that the AVC adequately provided restitution for persons who lost money as a result of the alleged 

deceptive trade practices. Id. 215-16. In so doing, we rejected 

the state’s argument that the AVC was unsatisfactory under 

ORS 646.632(3)(a) on the ground that it did not specifically 

and independently provide restitution outside of a promised lump sum payment to the state. Id. at 215. Second, we 

rejected the state’s argument that the AVC was unsatisfactory on the ground that defendants promised only to refrain 

from “material” representations. Id. at 217. We concluded 

that, even if the UTPA did not contain a materiality element 

as the state argued, other provisions of the AVC promised 

that defendants would obey the UTPA in full. Id. “In addition—and significantly—the AVC contain[ed] a severability 

clause” which allowed the AVC to remain in effect after severing the provision stating that defendants would refrain 

only from “material” representations. Id. We reversed the 

denial of attorney fees for the trial court to determine the 

amount of reasonable attorney fees and costs due to defendants. Id. at 218.
Cite as 335 Or App 30 (2024) 57

As we have explained above, the Supreme Court 

later held that the UTPA does not contain a materiality 

requirement and remanded the case to us to consider the 

state’s additional arguments. Living Essentials II, 371 Or at 

44. According to the state, that holding should cause us to 

reconsider our determination on the AVC’s compliance with 

the UTPA if we reverse the trial court’s judgment in any way 

because defendants would no longer be the prevailing party. 

The state argues that the AVC violates the UTPA because 

defendants promised to refrain from material misrepresentations, which is contrary to the UTPA.

We decline the state’s invitation to reconsider our 

conclusion on the AVC, and we adhere to our original conclusion because the Supreme Court’s decision does not undercut or change our previous analysis. We reasoned in our first 

opinion that, even if the UTPA did not contain a materiality 

element, the AVC was satisfactory because other provisions 

of the AVC promised full compliance with the UTPA and 

because any provision contrary to the UTPA would be severable. Given that reasoning, the Supreme Court’s determination regarding materiality does not alter our conclusion 

that the AVC is satisfactory. We therefore adhere to that 

conclusion and our decision to reverse and remand the supplemental judgment.

We note that, in light of our partial reversal and 

remand, defendants are not, at present, prevailing parties. 

However, our remand to the trial court leaves the possibility 

that defendants prevail. In the event that they do, our conclusion that defendants’ AVC was satisfactory means that 

defendants would be eligible for a discretionary award of 

attorney fees under ORS 646.632(8).

III. DISPOSITION

For the foregoing reasons, we reverse the general 

judgment as to Count 1 and remand for the trial court to 

determine (1) whether those representations that it deemed 

potentially false by implication are in fact false by implication; (2) whether those statements that the court erroneously determined were puffery are false; and, (3) if any of 

the representations are found to be false, what remedial 
58 State ex rel Rosenblum v. Living Essentials, LLC

measures are warranted. We otherwise affirm the general 

judgment. The supplemental judgment denying attorney 

fees is reversed and remanded for further proceedings pending the outcome of the remand proceedings on the merits.

On appeal, general judgment reversed and remanded 

as to Count 1, otherwise affirmed; on cross-appeal, supplemental judgment reversed and remanded.