Antitrust Law Daily Wrap Up, ADVERTISING—9th Cir.: Procter & Gamble’s razor advertising was “non-actionable puffery”, (Aug 12, 2013)

By Tobias J. Gillett, J.D., LL.M.

A purchaser of razor blade cartridges produced by The Procter & Gamble Company (P&G) failed to state putative class action claims under California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) against P&G over P&G’s allegedly deceptive advertising of its Fusion Power cartridges because the advertising constituted non-actionable puffery and did not assert claims of superiority over P&G’s Fusion Manual cartridges as to specific attributes of the blades, the U.S. Court of Appeals in Pasadena has ruled (Edmundson v. Procter & Gamble Co., August 7, 2013, per curiam).

In his complaint, the purchaser alleged that P&G had advertised its Fusion Power razor cartridges as being superior to its Fusion Manual cartridges, and its Fusion Power handles as being incompatible with Fusion Manual blades. The purchaser asserted that these claims constituted false advertising in violation of the UCL and the CLRA. The district court dismissed his action for failure to state a claim, and the purchaser appealed.

The Ninth Circuit panel upheld the district court’s decision because “P&G’s claim that the blades in Fusion Power cartridges ‘have a patented blade coating for incredible comfort’ 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.” The district court “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,” according to the court of appeals. Moreover, differences in names, color coding, and price between the Fusion Power and Fusion Manual cartridges were “even less specific and verifiable” when considered as superiority claims.

Further, even if P&G’s advertising did “convey the message that Fusion Power cartridges are generally superior to Fusion Manual cartridges,” that advertising did not “assert superiority in terms of the specific attributes of closeness, comfort, irritation and pressure.” Instead, the packaging merely stated that the Fusion Power cartridges “have a bladed coating for incredible comfort”; phrases such as “less irritation,” “more comfort,” and “reduced pressure” appeared on the packaging for both types of Fusion cartridges, and were intended to compare the Fusion cartridges with P&G’s Mach3 cartridges.

Finally, the purchaser “expressly predicated” his claim regarding the compatibility of Fusion Power and Fusion Manual blades with different handles “on his non-actionable superiority claim,” and therefore that claim also failed.

The case is No. 11-56664.

Attorneys: Timothy G. Blood (Blood Hurst & O'Reardon LLP) for Ryan Edmundson. Daniel James Stephenson (Dykema Gossett LLP) for The Procter & Gamble Company.

Companies: The Procter & Gamble Company

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