                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 15 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JARROW FORMULAS, INC., a                         No. 11-55751
California corporation,
                                                 D.C. No. 2:10-cv-00801-JST-SS
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

STEADFAST INSURANCE COMPANY,

              Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                 Josephine Staton Tucker, District Judge, Presiding

                      Argued and Submitted February 6, 2013
                               Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.

       The district court granted summary judgment to Steadfast Insurance Company.

We have jurisdiction over Jarrow Formulas, Inc.’s appeal under 28 U.S.C. § 1291, and

review the “district court’s grant of summary judgment de novo.” Dawson v. Entek

Int’l, 630 F.3d 928, 934 (9th Cir. 2011).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The sole issue is whether the complaint in the underlying lawsuit between Bio

Minerals n.v. and Jarrow potentially stated a claim for product disparagement and thus

triggered Steadfast’s duty to defend. See Cort v. St. Paul Fire & Marine Ins. Cos.,

311 F.3d 979, 983 (9th Cir. 2002) (noting that to determine whether an insurer has a

duty to defend, the court compares the complaint to the policy terms).

      Even in light of the broad duty of insurers to defend, see id., the district court

did not err in concluding that Steadfast appropriately denied coverage.            The

complaint’s allegations that Jarrow “passed off” its product to consumers do not

involve false or misleading statements about Bio Minerals’ product. See Microtec

Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d 968, 972 (9th Cir. 1994). Jarrow

never mentioned the Bio Minerals supplement in its advertising, nor did Jarrow

suggest that its supplement was superior to others. See Hartford Cas. Ins. Co. v. Swift

Distrib. Inc., 148 Cal. Rptr. 3d 679, 688 (Cal. Ct. App. 2012). Rather, Jarrow’s

advertisement simply referred to a study about the effect of the Bio Minerals

supplement on calf skin. The advertisement could not reasonably be construed as

impliedly disparaging the Bio Minerals supplement. Finally, the underlying complaint

does not suggest that Jarrow impliedly disparaged the Bio Minerals supplement by

associating it with the Jarrow supplement, because there are no allegations that

Jarrow’s supplement was inferior.


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AFFIRMED.




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