Michael Tubbs v. Advocare International, Lp ( 2019 )

FILED
NOT FOR PUBLICATION
NOV 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL TUBBS; EBONY BAKER, No. 18-55395
Plaintiffs-Appellants, D.C. No.
2:17-cv-04454-PSG-AJW
v.
ADVOCARE INTERNATIONAL, L.P., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted November 12, 2019**
Pasadena, California
Before: GRABER, BERZON, and CHRISTEN, Circuit Judges.
Plaintiffs Michael Tubbs and Ebony Baker timely appeal from the district
court’s dismissal of their complaint alleging that Defendant AdvoCare
International’s marketing statements were false or misleading, in violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
several California laws. Reviewing de novo, Santomenno v. Transamerica Life
Ins. Co., 883 F.3d 833, 836 (9th Cir. 2018), we affirm.
The district court correctly held that Plaintiffs failed to allege false or
misleading statements under California law. See Nat’l Council Against Health
Fraud, Inc. v. King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 212 (Ct. App. 2003)
(holding that private plaintiffs may seek relief only from false or misleading
statements); see also Kwan v. SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir.
2017) ("King Bio’s holding is firmly established law in California."). California’s
reasonable consumer standard for alleging false advertising and unfair business
practices "requires a plaintiff to show potential deception of consumers acting
reasonably in the circumstances." Hill v. Roll Int’l Corp., 128 Cal. Rptr. 3d 109,
115 (Ct. App. 2011). "The falsity of the advertising claims may be established by
testing, scientific literature, or anecdotal evidence." King Bio, 133 Cal. Rptr. 2d at
216.
Plaintiffs’ anecdotal evidence, standing alone, is insufficient to create an
inference of falsity. The experiences of only two persons are unlikely to raise an
inference of falsity because reasonable consumers generally do not understand
marketing statements as promises of perfection. See Brockey v. Moore, 131 Cal.
Rptr. 2d 746, 756 (Ct. App. 2003) (suggesting that the experience of "very few
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persons" or "isolated examples" may not suffice to show false or misleading
statements); Consumer Advocates v. Echostar Satellite Corp., 8 Cal. Rptr. 3d 22,
29–30 (Ct. App. 2003) (holding that no reasonable consumer of a television
satellite system would understand a promise of "crystal clear" video and "CD
quality" audio "as a promise of perfection").
Even assuming that Plaintiffs’ individual experiences could give rise to an
inference of falsity, the allegations here fall short. Many of the alleged
statements—such as the promises of "great tast[e]" and a "new outlook on
life"—are "all-but-meaningless superlatives" because "no reasonable consumer
would take [them] as anything more weighty than an advertising slogan." Id. at 29.
For the remainder of the alleged statements, Plaintiffs’ complaint lacks sufficient
detail to infer falsity.
The district court correctly held that the scientific study of the effects of
AdvoCare Spark on the sprinting times of college athletes does not support
Plaintiffs’ claims. On appeal, Plaintiffs point only to the marketing statements that
Spark would "sharpen mental focus" and provide "long lasting energy." Sprinting
times—a measure of physical exertion over a short period of time—implicate
neither of the touted benefits of mental focus and long-lasting energy.
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The district court correctly held that the report by Dr. Randall L. Tackett
does not support Plaintiffs’ claims. We assume, without deciding, that the district
court erred by evaluating the persuasiveness the report’s final conclusions. See
Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992–93 (9th Cir. 2018) (per
curiam) (holding that the persuasiveness of an admissible report by an expert is for
the fact-finder to decide). We therefore accept as true that "Spark does not have
any benefit that would be more so than ingesting the approximate amount of
caffeine in a typical cup of coffee. Spark’s actions are attributed to the caffeine in
the product." But those conclusions do not give rise to an inference of falsity with
respect to the marketing statements of mental focus and long-lasting energy,
because a reasonable consumer understands that caffeine also provides those
benefits.
Because we affirm on the ground that Plaintiffs have not alleged a false or
misleading statement, we do not reach the alternative grounds advanced by
Defendant on appeal.
AFFIRMED.
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