                                                                           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                           NOT FOR PUBLICATION                             AUG 09 2013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”

                                          2
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

                                           3
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.

                                           4
AFFIRMED.




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