Big Stink Over Kitty Litter

     MANHATTAN (CN) – Church & Dwight sued Clorox in a federal complaint over cat shit. Church & Dwight claims Clorox broadcasts a misleading and disparaging commercial, based upon unsound science, in which cats “reject and refuse” to excrete upon Arm & Hammer Super Scoop kitty litter, but do so with gusto upon Clorox’s Fresh Step.




     Church & Dwight’s 20-page complaint includes a 5-page attachment with “storyboards” of the commercials.
     “The Clorox advertisements clearly depict multiple cats rejecting and refusing to use a litter box containing Church & Dwight’s Super Scoop litter. Moreover, the Clorox advertisement depict every car presented with a choice between the parties’ competing littler products choosing Clorox’s Fresh Step litter over Super Scoop. These unambiguous communications are demonstrably false, contradicted by Church & Dwight’s independently conducted research, and not supported by what is, upon information and belief, Clorox’s heavily flawed study in support of its claims.
     “The reputational and monetary damages to Church & Dwight and its cat litter products from the Clorox advertisements – including a loss of confidence in Super Scoop cat litter by consumers, lost market share, lost profits, and loss of goodwill – is potentially substantial, irrevocable, and will continue to grow unless the Clorox advertisements are preliminarily and permanently enjoined.”
     Church & Dwight then proceeds to make the bold claim: “The Super Scoop product that is the subject of Clorox’s false comparative advertising provides outstanding odor elimination and is virtually never rejected by cats. Indeed, Church & Dwight’s independent testing confirms that, if anything, Clorox’s Fresh Step is rejected more frequently by cats than Super Scoop.”
     Church & Dwight then describes its “serial monadic test” upon 158 cats.
     “Of the 158 cats involved in Church & Dwight’s study, only 6 – or less than 4% – rejected their litter box and relieved themselves elsewhere in the home when it was filled with Church & Dwight’s Super Scoop. 8 cats – slightly more than 5% – rejected their litter box when it was filled with Clorox’s Fresh Step litter.”
     Quod erat demonstrandum.
     What’s more, Church & Dwight says, Clorox’s study was performed upon only 8 cats, who were “exposed at the same time to the same two litter boxes, one containing each brand of litter. The total of all excrement in each of the boxes was weighed at the conclusion of the test period. Clorox’s study reported that the cats, in aggregate, deposited more ‘excrement’ by weight in the box containing Fresh Step litter than in the box containing Super Scoop. From that conclusion, Clorox, upon information and belief, drew the further conclusion that cats prefer Fresh Step over Super Scoop.”
     Church & Dwight then devotes six paragraphs to examining the “severe flaws” of the Clorox study.
     “The first flaw … was the use of 8 cats at the same time. This flaw was exacerbated by a second flaw, namely allowing those cats access to only 2 litter boxes. It is well-known that inter-cat behavior can impact cats’ use of a particular litter box in ways that have nothing to do with cat preference for or rejection of a particular litter. Thus, for example, the choice by one cat of a particular litter box can either attract other cats to the same litter box, or frighten or intimidate other cats from using that litter box.
     “The foregoing is not an abstract or unrealistic concern.”
     Church & Dwight proceeds to point out that “eight-cat households are highly atypical. … the average number of cats in US cat-owning households has been reported to be between 1 and 2.” The 8-cat experiment, therefore, rests upon tenuous scientific grounds, and “the Clorox advertisements say nothing about the extremely unusual conditions in which Clorox evaluated supposed cat litter preferences,” the complaint states.
     “Another obvious flaw of Clorox’s study is the fact that it aggregated the weight of the waste of all the cats combined, rather than weighing the waste of each cat individually. Just as is the case with humans, different cats produce different amounts of waste.”
     Finally, Church & Dwight claims, “it would be very difficult, if not impossible, to determine whether cats preferred one litter over another because of the litter’s ability to eliminate odors, which the Clorox advertisements claim.”
     Church & Dwight seeks damages for false advertising, in violation of the Lanham Act, violation of New York general business law, product disparagement, injurious falsehood and trade libel, unfair competition, and unjust enrichment.
     It seeks an injunction, corrective advertising, recall of all the ads in any medium that contain the allegedly false claims, all the ill-gotten gains Clorox got from the ads, and compensatory and punitive damages, costs and fees.
     Church & Dwight is represented with Alexander Kaplan with Proskauer Rose.
     U.S. households own 93.6 million cats, give or take a cat, according to a 2010 report from the American Pet Products Association.
     The number of cats is growing far faster than the number of people. According to a 1997 report from the Wisconsin Department of Wildlife, the number of cats in U.S. homes grew from 30 million in 1970 to 60 million in 1990.
     The American Pet Products Association (APPA) reported that the 93.6 million cats in U.S. homes were distributed among 38.2 million households, which comes to 2.45 cats per cat-owning house.
     For the record, 45.6 million U.S. households own 77.5 million dogs, according to the APPA, or 1.7 dogs per dog-owning house.
     Total U.S. pet industry expenditures came to $47.7 billion in 2010, according to the APPA.
     Courthouse News began calculating excrement totals by weight for 93 million cats, but decided against it.

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