Commercial Based on Unreliable “Lab Test” Enjoined

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

Cat litter manufacturer Clorox was preliminarily enjoined by the federal district court in New York City from airing a television commercial making comparative claims about cat litter odor reduction.

Competitor Church & Dwight (C & D) was likely to succeed on the merits of its Lanham Act false advertising suit that the commercial made literally false claims based on an unreliable “lab test,” and was likely to suffer irreparable harm, the court held.

Clorox’s litter used carbon as an odor fighting ingredient while C & D’s litter used baking soda. In Clorox’s test, 11 panelists gave a malodor rating of zero to cat excrement treated with carbon in sealed jars but found that baking soda reduced odor only 32%—the same decrease represented in the demonstration shown in Clorox’s commercial.

Necessary Implication of Falsity

The commercial was literally false because the “jar test” could not reasonably support the necessary implication that Clorox’s litter outperformed C & D’s products in eliminating odor, the court determined. The test was unreliable because its unrealistic conditions said little, if anything, about how carbon performs in cat litter in circumstances highly relevant to a reasonable consumer, and it could not possibly support Clorox's very specific claims with regard to litter, according to the court.

Another reason given by the court for rejecting the test results was the implausible uniformity with which panelists found that cat excrement treated with carbon contained “zero” malodor. When 11 panelists stick their noses into jars of excrement and report 44 times that they smelled nothing unpleasant, the result more likely reflected flaws in their in-house training or objectivity than any reliable result, the court said.

Irreparable Harm

C & D proved a likelihood of irreparable harm. One of the beakers in Clorox's commercial bore the label “baking soda,” and C & D was the only major manufacturer of cat litter that used baking soda as a deodorizing ingredient. Consumers shopping for cat litter overwhelmingly identified baking soda with C & D’s Arm & Hammer cat litter products, according to the court.

The court concluded that the comparisons were at least as direct as those in Time Warner Cable, Inc. v. DIRECTV, Inc. (CCH Advertising Law Guide ¶62,620), where the court found that viewers of a DIRECTV commercial that disparaged “cable” in an area in which Time Warner served as the exclusive cable provider would “undoubtedly understand” that criticism to apply to Time Warner specifically.

The January 4 opinion in Church & Dwight Co. v. Clorox Co. will be reported at CCH Advertising Law Guide ¶64,533.

Sunscreen Manufacturer Denied Injunction Against Comparative Ad

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

The federal district court in Wilmington, Delaware denied a sunscreen manufacturer’s request for a preliminary injunction, filed as part of a Delaware Deceptive Trade Practices Act, against a competing manufacturer that ran a print advertisement comparing the “sport” sunscreens produced by the two companies.

Comparative Illustration, Bar Graph

The competing manufacturer provided retail stores with a display case that featured an illustration comparing the effects of a layer of the two sunscreen products. According to the manufacturer, the advertisement falsely represented that its sunscreen did not protect consumers from UVA rays because it did not contain the same chemicals as the competing product.

The print ad also contained a bar graph that directly compared the two products, which the manufacturer argued was inaccurate, not to scale, and employed an irrelevant analysis. Therefore, the manufacturer sought a preliminary injunction against the competitor to remove the print advertisement from the retailers.

Literal Falsity v. Interpretation

Because the manufacturer failed to demonstrate the requisite likelihood of success to justify the extraordinary relief of an injunction, the court denied the request. There was nothing literally false about the statements made in the sunscreen advertisement, according to the court, because it was open to interpretation.

While the illustration could be seen as stating that the manufacturer’s sunscreen did not protect against UVA rays, it could also be interpreted as stating that not using sunscreen did not protect against UVA rays.

Clear and Unambiguous Message

The graph at issue did not impart a clear or unambiguous message that could be the basis for a preliminary injunction, according to the court. Each manufacturer presented evidence concerning the data contained in the bar graph. Because the matter was better suited to be fleshed out during the course of the litigation, the court denied the motion for the preliminary injunction.

The August 5 decision in Schering-Plough Healthcare Products, Inc. v. Neutrogena Corp., will appear at CCH State Unfair Trade Practices Law ¶31,872