Thursday, August 07, 2008

“Natural Fit” Diaper Ad Campaign Not Enjoined

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

In a suit brought by Procter & Gamble alleging that Kimberly-Clark falsely advertised its Huggies “Natural Fit” diapers in violation of the Lanham Act, the federal district court in Green Bay, Wisconsin, declined to issue a preliminary injunction to halt the campaign while the case is pending.

The advertised line of diapers is contoured toward the center between the baby’s legs. KC advertises that the diapers have a more “natural” fit than traditional diapers, the court noted.

“Brick Baby” Campaign

The parties have referred to the advertising as the “Brick Baby” campaign. The moniker derives from the fact that in KC’s television advertisement the announcer humorously suggests that KC’s diapers are designed for “babies of the human variety” while the image on screen suggests that other diapers are designed to fit inanimate bricks. KC commissioned a study by a company called MSW, which concluded that the ad was very persuasive.

P&G did not appreciate KC’s attempt at humor, in particular the suggestion that other leading brands of diapers—especially Pampers and Luvs, which were not named specifically but were the clear target of the ads—fit less naturally in comparison to Huggies. P&G asserts that KC’s statement that Huggies “fit more naturally” due to their contoured shape is false. Huggies’ contoured shape, P&G asserts, is irrelevant to how the diapers fit.

P&G asserts that KC’s consumer and employee testing does not back-up KC’s claim that the diapers fit more naturally. P&G further argues that its own testing proves that Pampers and Huggies have essentially the same “natural” fitting qualities.


The “natural fit” advertising, in the court’s view, is “puffery” that cannot be proven true or false. The “more natural fit” claim is inherently vague and cannot be proven true or false because it is based solely on subjective consumer preference, according to the court.

P&G contended that diaper fit claims are verifiable through consumer testing. However, the fact that consumer testing is the principal method for informing companies about natural fit does not mean it is a legitimate method for proving truth or falsity in the Lanham Act context, the court said. When subjective preference is the arbiter of an advertising claim, resort to consumer studies is of limited value and only underscores the inherent difficulty in disproving the claim, in the court’s opinion.

Proof of Falsity

Even if the advertising were not puffery, P&G is unlikely to succeed in proving that the “natural fit” claims are false or misleading, the court added. Because KC’s advertising did not mention any consumer tests, P&G could not prove the advertising false by attacking KC’s test methodology. In addition, even granting P&G’s premise that consumer testing is a reliable means of proving or disproving a claim about natural fit, the court concluded that the evidence did not tend to show that P&G would be able to succeed in disproving the truth of KC’s claim.

Irreparable Harm

Finally, P&G failed to show “irreparable” harm from the advertising, the court found, and this alone sufficed to justify the denial of preliminary injunctive relief. P&G’s brand manager’s testimony indicated that the damages his employer had sustained were calculable now and will be calculable in the future. This is not a case where P&G’s products are being irreparably disparaged, according to the court. It is, instead, a case about money. Any harm P&G has suffered would be remediable by a monetary award without injunctive relief, the court said.

The August 5, 2008, decision in Procter & Gamble Co. v. Kimberly-Clark Corp., Case No. 07-C-883, will be reported in CCH Trade Regulation Reports and CCH Advertising Law Guide.

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