Ryan Edmundson v. the Procter & Gamble Company

FILED
NOT FOR PUBLICATION AUG 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN EDMUNDSON, on behalf of No. 11-56664
himself, all others similarly situated and
the general public, D.C. No. 3:10-cv-02256-IEG-NLS
Plaintiff - Appellant,
MEMORANDUM*
v.
THE PROCTER & GAMBLE
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted August 7, 2013**
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff-Appellant Ryan Edmundson filed a putative class action against the
Procter & Gamble Company (“P&G”), which manufactures, markets, and sells
“Fusion Power” and “Fusion Manual” shaving handles and razor cartridges.
Edmundson alleged that P&G engaged in false advertising for these products in
violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200-
10, and Consumer Legal Remedies Act, Cal. Civ. Code § 1770. The district court
dismissed Edmundson’s action for failure to state a claim.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district
court’s dismissal de novo, and construing all allegations in Edmundson’s favor,
Williams v. Gerber Prods. Co., 552 F.3d 934, 937 (9th Cir. 2008), we affirm. We
have considered the packaging of the Fusion Power and Fusion Manual cartridges
because Edmundson’s complaint “necessarily relies” on that packaging, and the
parties do not dispute the authenticity of the reproductions in the record. Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citations omitted).
1. Specific, quantifiable “statements of fact” that refer to a product’s
absolute characteristics may constitute false advertising, while general, subjective,
unverifiable claims are “mere puffery” that cannot. Newcal Indus., Inc. v. Ikon
Office Solution, 513 F.3d 1038, 1053 (9th Cir. 2008). P&G’s claim that the blades
in Fusion Power cartridges “have a patented blade coating for incredible comfort”
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is not a message that those cartridges are superior to Fusion Manual cartridges,
and, in any event, is non-actionable puffery because it is general, subjective, and
cannot be tested. See Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc.,
911 F.2d 242, 246 (9th Cir. 1990) (“[A]dvertising which merely states in general
terms that one product is superior is not actionable.” (quotation marks omitted));
cf. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997)
(company’s advertisement that its slow-growing grass required “50% Less
Mowing” was an actionable statement of fact); Sterling Drug, Inc. v. FTC, 741
F.2d 1146, 1151–53 (9th Cir. 1984) (company’s claim that its brand of aspirin was
consistently better than other brands “for purity, stability, and speed of
disintegration” was properly determined not to be puffery). Any superiority
message conveyed by the names and color coding P&G uses for the two types of
cartridges, or by the fact that P&G charges more for Fusion Power cartridges, is
even less specific and verifiable.
2. Edmundson’s counter-arguments lack merit. First, the district court
did not create a new standard for puffery, but rather properly held that a claim must
be sufficiently specific, either by reference to particular product characteristics or
“criteria for measuring a ‘better’ shave,” such that the claim can be tested. See
Newcal Indus., 513 F.3d at 1053 (an actionable statement is one “that is
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quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a
product’” (quoting Cook, Perkiss & Liehe, 911 F.2d at 246)).
Second, the district court’s two dismissal orders, considered together, make
clear that the court considered P&G’s advertising in its entirety.
Third, even assuming P&G’s advertising does convey the message that
Fusion Power cartridges are generally superior to Fusion Manual cartridges, the
advertising does not, contrary to Edmundson’s allegations, assert superiority in
terms of the specific attributes of closeness, comfort, irritation and pressure.
Rather, the packaging for Fusion Power cartridges says only that the blades in the
cartridges “have a patented bladed coating for incredible comfort”; phrases such as
“less irritation,” “more comfort” and “reduce[d] pressure” are found on the
packaging for all Fusion cartridges, and are a comparison between Fusion
cartridges and P&G’s “MACH3” cartridges, not between Fusion Power and Fusion
Manual cartridges. Similarly, nowhere does the packaging claim that Fusion
Power blades are more comfortable “vs. Fusion Manual” blades.
3. The district court properly dismissed Edmundson’s claim that P&G
falsely advertised the compatibility of Fusion Power and Fusion Manual cartridges
with different shaving handles. In his amended complaint, Edmundson expressly
predicated that claim on his non-actionable superiority claim.
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AFFIRMED.
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