The New Katz Cats Test: Court Cries Foul Over Kitty Litter Claim

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

26 thoughts on “The New <del datetime="2012-01-05T15:23:05+00:00">Katz</del> Cats Test: Court Cries Foul Over Kitty Litter Claim”

  1. We got one of them smell tests at my school. If you have stepped in something and walk in the door smelling like dog or cat poop an alarm goes off by the door. You have to take your shoes off and take them outside to be cleaned later at the morning break. So we started spreading cat turds around the teachers lounge so that when they stepped in it theyd have to take their stinkin shoes off too. Nay! They did not buy into it. We left a half bag of kitty litter up there by the door and they didnt use it. A bag of that crap only goes so far. I am glad that you put this post on the blog today. This topic is important.

  2. Gene H.-

    As a Ren and Stimpy fan, do you, as is required in the by-laws of the Ren and Stimpy Fan Club, wear rubber nipples on your knees?

  3. Judge Rakoff’s decision is a good one and founded in common sense, Those of us that have cats and bake know that when we hear “Arm & Hammer” that baking soda is involved and vice-versa. If there is a selection of litter and one of them is A&H and the question is “which one has baking soda in it”, that A&H is the correct answer. Any variation on that template has the same result. The implication that ‘baking soda’, which equates to A&H, is inferior to Clorox is pretty clear.

    And sealed beaker experiments, no matter how long they are left to sit, are just silly- if we could get our kitties to put their waste in sealed beakers we wouldn’t need litter would we? 🙂

  4. Blouise

    rabbits do make good pets but some develop a taste for the insulation on electrical cords.

  5. The Advertizing Industy is one of my pet peaves that you guys haven’t heard about.

    You know? I make jokes and smart ass comments about crooked Lawyers; which you guys take well; but I always say that I know there are alot of good guys out there as well.

    When it comes to the Advertizing Industry; I don’t believe there are any good guys.

    The Industry was conceived and designed for the sole purpose of deceiving people.

    This is in part; because of the sad fact; for example; that Kitty Litter is pretty much Kitty Litter. You can add Baking Soda (it does cut down the oder somewhat) or Charcoal if you wish (I don’t know how well Charcoal would work) but then why not buy the dollar box of Baking Soda and add it to the regular cheap litter.

    That kind of radical; outside the box; improvisational thinking had to be stopped.

    And so the Advertizing Industry was born so that Corporations who had nothing new or of value to sell could still make money by paying the Advertizing Industry to convince the public that they did.

    So we get products that do virtually nothing which are then promoted as wonderful new ideas.

    They are marketed to us in a vast variety of ways using a veritable Cornucopia of deceptive ploys.

    They are sold because they are cute or because they perform one single function of inestimatable value such as look cute hanging from your glass of summer punch or they make your three hole punch; punch hearts instead of cirles.

    BTW don’t dare say publically that you think cutsie toaster covers or winkey warmers or……..or that ever so clever nail trimmer for pets that features the spinning grinding stone of death isn’t a valuable item worhty of all of the Advertizing Industry’s talents.

    The American public is no longer able to decide for itself. Oh some of us still manage to maintain a critical eye but even we are led down the easy road of the Name Brand or the new gadget (some actually work well) at times.

    Mostly; for whatever reason; the public is just so pleased to be told what to buy. Where to shop; etc. etc. etc.

    Mix Baking Soda in my own cat litter?

    Why when for only 7 or 8 dollars more I can get it done for me?

    Many people are so out of touch with the real world that they are not even aware that such things are possible. This is no joke. There are alot of people out there who a) don’t know what baking soda is or what it does; b) would assume there was a special proccess or technique they would have to master; or c) don’t care because they would rather be ripped off than have to touch that yuckey litter. (as if it came from the bag with cat waste in it)

    Just the mere tip of the tip of the iceberg. Examples of Advertizing campaigns that are so stupid or deceitful or insult the intelligence of the average stone are everywhere and the roster reaches back decades.

    The misleading wording; small print disclaimers; and subliminal manipulation has created a culture of lies. A massive fabrication swarm that consumes currency at a prodigeous rate and produces nothing of value. Not one tangible item.

    It perpetuates it’s own existence through the manipulation of the entire world population. It is a Propaganda Machine to make Joseph Goebbels green,
    “Hi, I’m Joe Goebbels. I’ve been dead for seventy years; but I just had to come back to tell you about new “Prissy Kitty” cat litter from Felax.”

    Anyway, I promised myself I wouldn’t try to say it all in one comment.

    I have nothing good to say about these professional liars.

    1. “Prissy Kitty” cat litter from Felax.”


      Is that the one that costs $10 for ten pounds and immunizes your cat from disease, or the one that fluffs its hair and causes it to be a better groomer?

  6. Liberty1st 1, January 5, 2012 at 11:53 am

    The topic does not pass the smell test for what is relevant or meaningful subject matter on a Constitutional Law Blog.
    There is no such thing as “Constitutional Law” as you think you understand it.

    The “smell test” is an olfactory myth from the perfume factory.

    There is no such thing as meaningful subject matter in such a context.

  7. Submitted without further comment . . .

    The poem that got Stimpy the job as spokescat for Gritty Kitty Litter;

    Gritty Kitty ain’t so pretty,
    But it’s really thick.
    It fills my cat box oh so snug;
    It always does the trick.

    I like to rub it on my toe
    And squish and squish and squish!
    It rare offends my tender nose,
    Like a smelly fish!

    Its texture is a joy to me,
    It’s just as smooth as silk.
    It makes my little whiskers twitch;
    It stays crunchy, even in milk!

    I may not be the President,
    I may not be the Pope,
    But as long as I have Gritty Kitty,
    I shall never mope!


    And the commercial proper;

  8. The topic does not pass the smell test for what is relevant or meaningful subject matter on a Constitutional Law Blog.

    1. Liberty1st,

      Re: “The smell test” one of the joys of being here is that solemnity of tone is often overrated. If Jonathan didn’t have such a great sense of humor, I doubt that many of us would have been around for so long. The state of civil liberties and Constitutional Rights is so damaged, that a little humor is often the remedy for deep despair.

  9. Hmmm, I feed rabbits (among other critters) to my cats . Sorry, it’s nature’s way. Makes for a much less stinky litter box than commercial food too, to stay somewhat on topic (a stretch, I know).

  10. I’ve had cats over the years. As noted by others, frequent changing of the litter is best for humans and cats. I sometimes bought more expensive brands, giving them a chance to live up to their claims, but then went back to price shopping.

  11. I haven’t had a cat for years due to allergies, but when we did have them, we also bought litter base on price. I have no problem with the court throwing out the unsupported claim. If they can’t prove it, then they are lying to the public and to unsuspecting cats everywhere.

  12. The case is a litter out of touch:

    One of the most important comments on deceit, I think, was made by Adam Smith. He pointed out that a major goal of business is to deceive and oppress the public.

    And one of the striking features of the modern period is the institutionalization of that process, so that we now have huge industries deceiving the public — and they’re very conscious about it, the public relations industry. Interestingly, this developed in the freest countries—in Britain and the US — roughly around time of WWI, when it was recognized that enough freedom had been won that people could no longer be controlled by force. So modes of deception and manipulation had to be developed in order to keep them under control”

    (The Deceit Business).

  13. We have always had cats and Tex has always been in charge of the litter box. So I asked him what brand he uses and, like Mike, he told me he shops by price and changes the litter frequently. He does occasionally add baking soda to the litter. Sorry cat litter brand names.

    BTW … on topic I think … rabbits make great house pets, especially for kids in apartments. Rabbits are easily trained to a litter box, make no noise except for the occasional thumping when frightened and are great companions. We’ve had 3 over the years and all of them would hop up on the couch with the kids and intently watch TV, sleep peacefully with the kids in bed, and are quite affectionate. We had collars and leashes and the kids took them for daily walks. Stay away from angoras … they are beautiful but require constant trimming.

  14. Having had one cat or another for many years my experience is that the litter smell rises in proportion to the time it is left uncleaned. I don’t buy litter by brand. I buy it by price and keep the box clean. In over 40 years of experience I’ve never seen on brand as better than another.

    That being said I’m not sure about Rakoff’s blocking the commercial. As a long time litter consumer (that does sound a little strange) I didn’t know until I read this article that A & H was the only litter using baking soda, which means I’m either uninformed or didn’t give a damn. Considering how many commercials make all sorts of product claims, why was this one so egregious, especially since A & H was not specifically mentioned?

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