Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Consumer failed to allege misrepresentations about Duracell storage, leaks, (Mar 16, 2016)

By Linda O’Brien, J.D., LL.M.

A consumer failed to plausibly plead that a battery manufacturer deceptively advertised that its line of batteries would not fail for up to ten years in storage and failed to disclose that the batteries could leak during normal use or storage, the federal district court in San Jose, California has held. Thus, the manufacturer’s motion to dismiss was granted (Punian v. The Gillette Company, March 15, 2016, Koh, L.).

Duracell manufactures and sells consumer batteries, including a line of batteries with a feature known as the “Duralock Power Preserve Technology.” The packaging of Duralock batteries includes the statements “Duralock Power Preserve” and “GUARANTEED for 10 YEARS in storage.”

In November 2014, consumer Renee Punian filed suit against Procter & Gamble, Duracell’s parent company, and the Gillette Company, Duracell’s previous parent company, alleging violations of California’s False Advertising Law (FAL), Consumers Legal Remedies Act (CLRA), and Unfair Competition Law (UCL). Punian claimed that the defendants’ advertising for Duracell Coppertop AA and AAA batteries was deceptive because the batteries could leak when used or stored in a normal manner, the defendants failed to disclose that its batteries could leak when not in use, and the defendants has prior notice of the defect from numerous consumer complaints and reviews on social media.

Before the court was the defendants’ motion for dismissal.

FAL, CLRA, and fraudulent prong of UCL. The court found that the defendants did not make affirmative misrepresentations about the potential of Duralock batteries to leak. No reasonable consumer would be misled by the battery packaging into believing that Duralock batteries had no potential to leak for ten years in storage, the court noted. Duralock’s guarantee was not an actionable affirmative misrepresentation in that a reasonable consumer would understand the guarantee as a promise to repair, replace, or refund a battery that failed within ten years of purchase—not a promise that Duralock batteries had no potential to leak.

Statements that the purchase of Duralock batteries “means that you will always have access to power” and Duralock batteries are a “power solution you can trust” were nonactionable puffery, in the court’s view. The statements were general in nature, which constituted vague product superiority claims and a reasonable consumer would interpret either statement as a factual claim upon which he or she could rely upon about the potential for leaks by Duralock batteries.

Additionally, the court determined that the defendants did not fraudulently fail to disclose the potential by Duralock batteries to leak. The plaintiff’s argument that the defendants concealed and misrepresented material facts concerning potential battery leakage was rejected. According to the court, Punian did not allege the cause of any defect in Duralock batteries, the impact of the leakage on the battery, the likelihood that Duralock batteries would leak, any consumer expectations about the leakage rate or potential of Duralock batteries to fail, or that any of the plaintiff’s Duralock batteries had failed. Such allegations were insufficient to plausibly allege that Duralock batteries’ potential to leak was a material defect.

Unlawful prong of UCL. The plaintiff’s claim based on the unlawful and unfair prongs of the UCL also was dismissed. According to the court, the plaintiff’s claim under the UCL—that the defendants allegedly concealed the potential of Duracell batteries to leak—overlapped entirely with the plaintiff’s claims under the FAL and CLRA. Since Punian did not show that the defendants made material omissions about the potential of Duralock batteries to leak that were likely to mislead a reasonable consumer, the plaintiff failed to sufficiently plead a substantial consumer injury.

The case is No. 5:14-cv-05028-LHK.

Attorneys: Barrett J. Clisby (Barrett J. Clisby, PLLC) for Renee Punian. Craig Ellsworth Stewart (Jones Day) for The Gillette Co. and The Procter & Gamble Co.

Companies: The Gillette Co.; The Procter & Gamble Co.

Cases: Advertising CaliforniaNews