Recently, Judge Lucy H. Koh of the Northern District of California dismissed a putative class action claiming that Procter & Gamble and Gillette deceptively advertised Duracell Coppertop AA and AAA batteries. Defendants advertised the batteries as having “Duralock Power Preserve Technology,” which, according to the challenged advertising, made them “GUARANTEED for 10 YEARS in storage.”  Since mid-2012, the front of the batteries’ packaging has referred to this Duralock technology and the Duralock guarantee.  Similar statements were repeated in a national advertising campaign.

The plaintiff alleged that defendants violated California’s false advertising, consumer protection and unfair competition laws by misrepresenting that batteries with Duralock would not fail for ten years, and by failing to disclose that these batteries have the potential to leak even during normal and expected use. The plaintiff said she would not have paid the purported “premium price” for Duracell batteries if she had known they could leak.

Addressing the plaintiff’s first claim, Judge Koh stated that a reasonable consumer would understand the Duralock guarantee as a promise to repair, replace, or refund a battery that is in storage and fails within ten years of purchase—not a promise that batteries with Duralock would not possibly leak. “In California, the use of the term ‘guarantee’ generally creates an express warranty,” the court found.

Judge Koh also considered two related advertising statements: that purchasing batteries with Duralock means that “you will always have access to power” when needed; and that batteries with Duralock are “a power solution [consumers] can trust.”  The court held that these statements constituted inactionable “puffery”—that is, “exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely.”

Finally, the plaintiff did not adequately plead that the defendants fraudulently failed to disclose the batteries’ potential to leak. Of the consumer complaints that the plaintiff brought to the court’s attention, only three complaints over a period of two years indicated that the batteries at issue might be likely to leak.  There was no other indication of how likely the batteries were to leak, that the failure to disclose the potential to leak was likely to deceive consumers, or that defendants concealed or covered up the potential to leak.  The allegations before the court were therefore insufficient to plead that the defendants had a duty to disclose the leaking potential that could open them up to charges of fraudulent failure to disclose or other nondisclosure liability.

The court dismissed the case with prejudice and did not give the plaintiff leave to amend the complaint. This dismissal follows the dismissal in October 2015 of a District of Massachusetts case that was brought by the same plaintiff’s counsel about the same claims and subject matter.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.