A federal court in New York has issued a preliminary injunction ordering Clorox Co. to stop airing TV commercials which claim, on the basis of lab tests, that its cat litter product, containing carbon, outperforms products containing baking soda, which are sold by the plaintiff. Church & Dwight Co., Inc. v. The Clorox Co., No. 11 Civ. 1865 (U.S. Dist. Ct., S.D.N.Y., decided January 4, 2012). The ads began airing in February 2011, after Clorox agreed to stop running previous ads claiming that cats prefer litter boxes with its product to litter boxes filled with plaintiff’s product. Apparently the plaintiff proved in lab tests that these ads were literally false.
The new ads claimed that sensory lab tests showed litter with carbon “is more effective at absorbing odors than baking soda.” In a lawsuit filed under the Lanham Act, the plaintiff alleged that the new commercial falsely claimed that “cat litter products made with baking soda do not eliminate odors well and that cat litter products made with baking soda are less effective at eliminating odors than Clorox’s Fresh Step cat litter.” Clorox apparently based its product comparison claims on an in-house test referred to as the “jar test,” in which trained sniffers smelled jars with cat feces and urine, some of which were treated with carbon and some of which were treated with baking soda.
The court agreed with the plaintiff that the test could not support Clorox’s claims and that the panelists’ findings were so uniform as to be suspicious. Discussing the ways that a jar test’s unrealistic conditions “say little, if anything, about how carbon performs in cat litter in circumstances highly relevant to a reasonable consumer,” the court determined that the “implication of Clorox’s commercials is literally false.” As to the uniformity issue, the court “agrees with [plaintiff’s] expert 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. Accordingly, the Court concludes that the results of the Jar Test are ‘not sufficiently reliable to permit one to conclude with reasonable certainty that they established the proposition for which they were cited’ in Clorox’s commercial.”
Because the reference to a baking soda-based cat litter product would evoke the plaintiff’s product and because the new commercials referred to cats’ intelligence and cleverness much like the old ones which specifically mentioned the plaintiff’s products, the court determined that the plaintiff proved a likelihood of irreparable harm if the ads remained on the air.