Tuesday, August 13, 2013

Puffery with a price: 9th circuit affirms dismissal in razor case

Edmundson v. The Procter & Gamble Co., 2013 WL 4035434 (9th Cir. Aug. 9, 2013)

Edmundson filed a putative class action against P&G, alleging that its ads for Fusion Power shaving handles and razor cartridges violated the UCL and CLRA. The court of appeals affirmed the dismissal of the claims on puffery grounds.  P&G’s claim that Fusion Power blades “have a patented blade coating for incredible comfort” was not a claim of superiority to Fusion Manual cartridges, and, in any event, was puffery: general, subjective, and untestable. Any superiority message conveyed by P&G’s names and color coding for the two types of cartridges, or by the fact that P & G charges more for Fusion Power cartridges, was “even less specific and verifiable.”  (A strikingly clear example of puffery the advertiser intends to be material, and seemingly is: anyone who buys the more expensive variant apparently gets nothing measurable for that, as a matter of law.)

Edmundson failed to identify a claim that was sufficiently specific with reference to particular product characteristics or criteria for measuring a “better” shave that could be tested.  Even assuming that P&G’s ads conveyed a superiority message for Fusion Power, the ads didn’t assert superiority on specific attributes such as closeness, comfort, irritation and pressure.  Instead, the Fusion Power packaging just said that the blades “have a patented bladed coating for incredible comfort.”  Phrases such as “less irritation,” “more comfort” and “reduce[d] pressure” were on the packaging for all Fusion cartridges, and the comparison was between Fusion and P&G’s MACH3, not between Fusion Power and Fusion Manual.

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