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By Tamlin H. Bason
• Case Summary: Clorox is ordered to immediately pull a commercial for cat litter off the air after the court determines that it makes literally false claims in the ad.
• Key Takeaway: Court criticizes in-house lab test for yielding “highly implausible” results
A commercial claiming that in a lab test one brand of cat litter entirely eliminated cat malodor is “literally false,” and thus the brand's competitor is likely to succeed in its false advertising lawsuit, the U.S. District Court for the Southern District of New York ruled Jan. 4 (Church & Dwight Co. v. Clorox Co., S.D.N.Y., No. 1:11-cv-01865-JSR, 1/3/12).
The court granted the competitor a preliminary injunction and ordered that the commercials be pulled from the air. The court also determined that the commercial was literally false under the doctrine of necessary implication, thus giving the court an additional reason to order the injunction.
Commercial Claims Carbon Better Than Baking Soda.
Both the plaintiff, Church & Dwight Co., and the defendant, the Clorox Pet Products Co., manufacture cat litter. The active ingredient to combat cat odor in Clorox's cat litter is carbon, whereas C&D manufactures the only brand on the market to use Arm & Hammer brand baking soda to neutralize cat odor.
In the fall of 2010, Clorox began running television commercials that boasted, among other things, that “carbon is better at eliminating odors than Arm & Hammer.” Moreover, the commercials claimed that cats were smart enough to prefer litter boxes that were lined with Clorox's Fresh Step brand litter than those that were lined with C&D's product because the former boxes are less odorous.
In January 2011, C&D filed a complaint alleging that the claims asserted in the Clorox commercials were literally false. C&D claimed that it tested 158 cats and of those cats tested, only six cats demonstrated an aversion to litter boxes that used C&D's products, whereas eight cats rejected litter boxes that used Clorox products. Clorox agreed to stop running the commercial and the complaint was voluntarily dismissed on Feb. 2, 2011.
However, Clorox soon began airing a new commercial in which it made a number of new assertions, including a reiteration of the claim that carbon is a more effective ingredient than baking soda in terms of reducing cat malodor. In the new commercial, the assertion is visually demonstrated by showing two laboratory beakers filled with green gas, meant to signal the presence of unpleasant odor.
One of the beakers has black carbon at the bottom and the other has white baking soda at the bottom. During the dramatization, the gas quickly and completely dissipates in the carbon beaker, whereas the gas level in the baking soda beaker only slightly ebbs. At the bottom of the screen viewers are informed that the results come from a “sensory lab test.”
C&D argued that the commercial is false both in its implication that baking soda does not eliminate cat odors, and in its assertion that litter with baking soda is less effective at eliminating cat odors than is Clorox's Fresh Step litter.
In the instant motion, C&D sought a preliminary injunction barring Clorox from continuing to air the commercial in question.
Quoting Citigroup Global Markets Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010), the court said, “In order to establish its entitlement to a preliminary injunction, C & D must show: ‘(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.' ”
The court went on to note that under Section 43(1) of the Lanham Act, success on the merits can be demonstrated by showing that the challenged advertisement is either literally false or likely to mislead or confuse consumers. More specifically, the court, quoting Castrol Inc. v. Quaker State Corp., 977 F.2d 57, 24 USPQ2d 1838 (2d Cir. 1992), said that where the advertisement makes a scientific or technical claim, such as Clorox's purported sensory lab results, the plaintiff “can prove literal falsity by showing that ‘the test did not establish the proposition for which [it was] cited' because it is either ‘not sufficiently reliable to permit a conclusion' or ‘simply irrelevant.' ”
Clorox's “sensory lab test” was in fact an in-house “jar test” in which eleven panelists smelled six different samples that were prepared by Clorox. Three of the samples contained cat feces that was either covered with baking soda or carbon, or was left uncovered. Cat urine was tested in the same manner.
The panelists were then asked to rate the samples on a scale of 0 to 15, with the higher numbers signifying more unpleasant odors. The experiment was repeated four times for a total of 44 samples.
The results indicated that carbon reduced the odor from a level of 2.72 down to 0. Baking soda, on the other hand, only reduced odor from 2.72 to 1.85, or 32 percent, which is what was demonstrated in the Clorox commercial.
C&D argued that: (1) the test does not support Clorox's claim that Fresh Step brand cat litter outperforms C&D's products in eliminating cat odor; (2) the finding that carbon completely eliminates odor is so suspicious that it renders the entire test unreliable; and (3) the test was unreliable because it failed to use a ratio scale to compare degrees of odor.
Judge Jed S. Rakoff accepted C&D's first two claims and therefore said it was unnecessary to address its third argument.
The court characterized C&D's first critique as a “falsity by necessary implication” argument. Under this theory, the court explained, “a company's claims about particular aspects of its products may necessarily imply more sweeping claims about that product, and these implied claims may be ‘literally false' within the meaning of the Lanham Act.”
C&D argued that the commercial's claim that carbon eliminated cat odor better than baking soda necessarily implies that Clorox's Fresh Step brand is superior to the C&P cat litter brands that use Arm & Hammer baking soda.
Clorox, on the other hand, argued that the commercial simply compares the odor-reducing qualities of two brandless ingredients—carbon and baking soda—and thus makes no claim about particular products. The court was not convinced, noting that consumers have no reason to care about “how effectively carbon works compared with baking soda outside the context of cat litter and competing cat litter products.”
The court went on to conclude, “The Jar Test cannot reasonably support the necessary implication that Clorox's litter outperforms C & D's products in eliminating odor in cat litters.”
This conclusion was supported by two factors. First, the court said the test utilized “unrealistic conditions” because the jars were sealed for 22 hours before they were subjected 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,” the court said.
Additionally, the court took issue with Clorox's highly specific claim that baking soda eliminated only 32 percent of offensive cat odor. By implication Clorox was making an assertion that its product was superior at eliminating cat odor both in a sealed jars and in open litter boxes. The court said that such implication was not supported by the test.
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.
C&D's second criticism went to the test's conclusion that carbon reduces odor to zero. C&D argued that such a result is “highly implausible” given that the test used humans, which are known to be “noisy instruments” when it comes to olfactory perception. The court explained that this is because humans “for neurological reasons, perceive the exact same thing differently at different times and report the presence of olfactory stimuli even when they do not exist.”
C&D argued that given this phenomenon, Clorox's assertion that humans reported zero odor on 44 separate occasions is highly implausible. C&D's argument was buttressed by Clorox's own internal study in which some panelists gave litter that contained no cat excrement a higher malodor score than zero.
This study, coupled with the fact that humans are known to be noisy instruments, led to the court to conclude “that it is highly implausible that eleven panelists would stick their noses in jars of excrement and report forty-four independent times that they smelled nothing unpleasant.” The court found the claim to be unreliable and literally false.
Because assertions made in the commercial were literally false, the court said that C&D had demonstrated a likelihood of success on the merits.
Turning next to the balancing of hardships, the court determined that C&D would suffer irreparable harm if the injunction were not granted.
Time Warner Cable Inc. v. DirecTV Inc., 497 F.3d 144, 83 USPQ2d 1897 (2d Cir. 2007), held that irreparable harm can be presumed if a plaintiff has demonstrated literal falsity in a comparative advertisement if consumers, given the context of the commercial, would presume that the advertisement is targeted at the plaintiff.
C&D is the only cat litter manufacturer that uses baking soda as an active ingredient to eliminate cat odor, and thus consumers will likely associate C&D's products with Clorox's commercial, the court concluded. The court issued an injunction and ordered Clorox to immediately pull the commercial from the air.
C&D was represented by Lawrence Weinstein, Richard Goldstein, and Alexander Kaplan of Proskauer Rose, New York. Clorox was represented by Jessie F. Beeber of Frankfurt Kurnit Klein & Selz, New York.
By Tamlin H. Bason
Opinion at http://pub.bna.com/ptcj/111865Jan411.pdf
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