One of my former students sent along this interesting case. U.S. District Judge Jed Rakoff in Manhattan has taken the relatively rare step of blocking a commercial by Clorox Company for its Fresh Step kitty litter. Rakoff agreed with lawyers from Arm & Hammer that the commercial would do the company “irreparable harm” by publishing misleading information about cat litter boxes — and cats generally. The claims did not pass the smell test for the Court which rejected the methodology used by Clorox.

The conflict began when Clorox began to show “playful home videos” of cats engaging in “clever behavior.” The premise was that cats are “smart enough” to choose litter with less odor. That presumably is fair game in the kitty litter business. Here is how the court described the commercial:

Sometime around February 14, 2011, Clorox began airing a new commercial, the one here in issue. Id. ¶ 14 & Ex. 6. In this commercial, cats are featured doing “clever” things and the voiceover announces: “We get cats. They’re smart. They can outsmart their humans. And their canines.” Then a cat is seen entering a litter box and pawing through the litter as the voiceover continues, “That’s why they deserve the smartest choice in litter.” Id. The commercial then transitions to a demonstration that displays two laboratory beakers. One beaker is represented as Fresh Step and the bottom of it is filled with a black substance labeled “carbon.” The other beaker is filled with a white substance labeled “baking soda.” Id. While the second beaker is not identified as any specific brand of cat litter, Arm & Hammer is the only major cat litter brand that uses baking soda. Id. ¶ 7. Green gas is then shown floating through the beakers and the voiceover continues: “So we make Fresh Step scoopable litter with carbon, which is more effective at absorbing odors than baking soda.” The green gas in the Fresh Step beaker then rapidly evaporates while the gas level in the baking soda beaker barely changes. Id. ¶ 18. During this dramatization, small text appears at the bottom of the screen informing the viewer that Clorox’s claims are “[b]ased on [a] sensory lab test.” Id. at ¶ 19.

The rub is the claim that carbon is “more effective at absorbing odors than baking soda.” Only Arm & Hammer uses baking soda for kitty litter. Arm & Hammer relied on the doctrine of “falsity by necessary implication,” the claim that representations of the particular aspects of a product may implies claims that may be “literally false” within the meaning of the Lanham Act.

Arm & Hammer cried foul and showed the court that there is no difference in odor reduction. Moreover, they noted that Clorox used jars that were sealed for between 22 and 26 hours.

Rakoff then held forth on the ugly reality of cat litter:

The Jar Test cannot reasonably support the necessary implication that Clorox’s litter outperforms C & D’s products in eliminating odor in cat litters. As noted above, Clorox sealed the jars of cat waste for twenty-two to [*11] twenty-six hours before subjecting them to testing. In actual practice, however, cats do not seal their waste, and smells offend as much during the first twenty-two hours as they do afterwards. Thus, the Jar Test’s unrealistic conditions say little, if anything, about how carbon performs in cat litter in circumstances highly relevant to a reasonable consumer. Moreover, to substantiate the commercial’s implied claims, the Jar Test must prove not only that carbon eliminates odors in open cat litter (as opposed to sealed jars), but also (1) that it outperforms baking soda in that task and (2) that baking soda eliminates only thirty-two percent of odors, the amount by which, in the commercial, the gas dissipated in the beaker labeled “baking soda.” Given that the Jar Test says little about how substances perform in litter as opposed to jars, it cannot possibly support Clorox’s very specific claims with regard to litter. Consequently, the necessarily contrary implication of Clorox’s commercials is literally false.

Who needs Katz when you have real cats to make legal doctrine? While “cats do not seal their waste” is unlikely to reach the same fame as “the fourth amendment protects people not places” from Katz, it will certainly secure a place in this industry for decades to come.

Rakoff’s rejection of the expert opinions used as the basis for the commercial is likely to be cited in future challenges over commercial claims. Rakoff rejects the methodology used by the company, noting “Clorox responds that the mere fact that humans are noisy instruments does not preclude a uniform rating of zero where no malodor was in fact present.” (By the way, kitty litter sniffers was not on the list of best jobs for 2011, but I would posit that no matter how little time is needed for this job, it is not worth the money).

The case is Church & Dwight Co v. Clorox Co, U.S. District Court, Southern District of New York, No. 11-01865.

Source: Chicago Tribune

Kudos: Alan Heymann