False Advertising Stinks!

A January 4, 2012 decision in the Southern District of New York demonstrates the importance of substantiating all claims made in advertising (regardless of forum: print, TV or product packaging itself). 

Church & Dwight, manufacturer of Arm & Hammer brand Super Scoop cat litter made with baking soda, brought a false advertising suit challenging its competitor Clorox’s TV commercials promoting Fresh Step cat litter made with carbon.

The commercial at issue compares the efficacy of Clorox’s carbon odor eliminator in cat litter to those litters relying on baking soda (where Church & Dwight is the only major brand of litter on the market which contains that chemical compound). The commercial makes its point both verbally and visually, (1) stating that cats are smart and “deserve the smartest choice in litter” as a cat enters a litter box containing Clorox’s product; (2) by showing two scientific beakers – one identified as containing Clorox’s product with carbon and the other containing baking soda coupled with a green gas meant to signify toxic fumes; and (3) including a disclaimer that indicates the ad is a “dramatization” which is “based on sensory lab test.” 

Clorox’s sensory lab test referred to in the commercial involved placing “fresh” feces and urine in jars, covering some with carbon and some with baking soda for a period of time and then having in-house test participants indicate if they smelled anything. Surprisingly, none of these unenviable in-house testers smelled anything when presented with a jar including Clorox’s odor eliminator, carbon.

Church & Dwight then commissioned an independent lab to conduct a sensory study which not only involved “a panel of persons trained” for the test (think your job is bad?) but also emphasized good lab practice of only using “synthetic” feces designed to mimic the smell of the real thing (also not envying the guy who had to invent that). This independent test revealed that cats do not prefer carbon and that Church & Dwight’s product is superior.

In order to demonstrate it was entitled to a preliminary injunction, Church & Dwight utilized these results to demonstrate a likelihood of success on the merits of its Section 43(a) Lanham Act False Advertising claim by showing that Clorox’s ad was literally false and “did not establish the proposition for which it was cited because it is either not sufficiently reliable to permit a conclusion or simply irrelevant.” (internal citations omitted). 

Ultimately, Clorox was enjoined from further airing the commercial because the test on which it based its claims was “unreliable, and even if it were reliable, could not possibly support Clorox’s implied claims about the relative merits of carbon and baking soda in cat litter.”

This case reeks of reminders not to rely on flawed or insignificant research.