FILED

NOT FOR PUBLICATION

NOV 19 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL TUBBS; EBONY BAKER, No. 18-55395

Plaintiffs-Appellants, D.C. No. 2:17-cv-04454-PSG-AJW v.

ADVOCARE INTERNATIONAL, L.P., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Submitted November 12, 2019** Pasadena, California

Before: GRABER, BERZON, and CHRISTEN, Circuit Judges.

Plaintiffs Michael Tubbs and Ebony Baker timely appeal from the district

court’s dismissal of their complaint alleging that Defendant AdvoCare

International’s marketing statements were false or misleading, in violation of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). several California laws. Reviewing de novo, Santomenno v. Transamerica Life

Ins. Co., 883 F.3d 833, 836 (9th Cir. 2018), we affirm.

The district court correctly held that Plaintiffs failed to allege false or

misleading statements under California law. See Nat’l Council Against Health

Fraud, Inc. v. King Bio Pharm., Inc., 133 Cal. Rptr. 2d 207, 212 (Ct. App. 2003)

(holding that private plaintiffs may seek relief only from false or misleading

statements); see also Kwan v. SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir.

2017) ("King Bio’s holding is firmly established law in California."). California’s

reasonable consumer standard for alleging false advertising and unfair business

practices "requires a plaintiff to show potential deception of consumers acting

reasonably in the circumstances." Hill v. Roll Int’l Corp., 128 Cal. Rptr. 3d 109,

115 (Ct. App. 2011). "The falsity of the advertising claims may be established by

testing, scientific literature, or anecdotal evidence." King Bio, 133 Cal. Rptr. 2d at

216.

Plaintiffs’ anecdotal evidence, standing alone, is insufficient to create an

inference of falsity. The experiences of only two persons are unlikely to raise an

inference of falsity because reasonable consumers generally do not understand

marketing statements as promises of perfection. See Brockey v. Moore, 131 Cal.

Rptr. 2d 746, 756 (Ct. App. 2003) (suggesting that the experience of "very few

2 persons" or "isolated examples" may not suffice to show false or misleading

statements); Consumer Advocates v. Echostar Satellite Corp., 8 Cal. Rptr. 3d 22,

29–30 (Ct. App. 2003) (holding that no reasonable consumer of a television

satellite system would understand a promise of "crystal clear" video and "CD

quality" audio "as a promise of perfection").

Even assuming that Plaintiffs’ individual experiences could give rise to an

inference of falsity, the allegations here fall short. Many of the alleged

statements—such as the promises of "great tast[e]" and a "new outlook on

life"—are "all-but-meaningless superlatives" because "no reasonable consumer

would take [them] as anything more weighty than an advertising slogan." Id. at 29.

For the remainder of the alleged statements, Plaintiffs’ complaint lacks sufficient

detail to infer falsity.

The district court correctly held that the scientific study of the effects of

AdvoCare Spark on the sprinting times of college athletes does not support

Plaintiffs’ claims. On appeal, Plaintiffs point only to the marketing statements that

Spark would "sharpen mental focus" and provide "long lasting energy." Sprinting

times—a measure of physical exertion over a short period of time—implicate

neither of the touted benefits of mental focus and long-lasting energy.

3 The district court correctly held that the report by Dr. Randall L. Tackett

does not support Plaintiffs’ claims. We assume, without deciding, that the district

court erred by evaluating the persuasiveness the report’s final conclusions. See

Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992–93 (9th Cir. 2018) (per

curiam) (holding that the persuasiveness of an admissible report by an expert is for

the fact-finder to decide). We therefore accept as true that "Spark does not have

any benefit that would be more so than ingesting the approximate amount of

caffeine in a typical cup of coffee. Spark’s actions are attributed to the caffeine in

the product." But those conclusions do not give rise to an inference of falsity with

respect to the marketing statements of mental focus and long-lasting energy,

because a reasonable consumer understands that caffeine also provides those

benefits.

Because we affirm on the ground that Plaintiffs have not alleged a false or

misleading statement, we do not reach the alternative grounds advanced by

Defendant on appeal.

AFFIRMED.

4