Clorox Denied Judgment on Cat Litter Advertising

SAN FRANCISCO (CN) - Kitty litter consumers can pursue claims that Clorox misrepresented the advantages of its Fresh Step product, a federal judge ruled.

The company advertised in 2010 and 2011 that its carbon-based litter product is "better at eliminating litter box odors" than the competing brand, Super Scoop, a baking soda-based product by Church & Dwight.

C&D sued Clorox, won an injunction against the commercial and then settled privately out of court.

Citing C&D's evidence, consumers around the country sued Clorox for misrepresentation. They brought allegations under the consumer-protection laws of California, Florida, New Jersey, New York and Texas, as well as claims for breach of express warranty and unjust enrichment in those same states.

Clorox is accused of deceiving consumers into paying more for a brand of cat litter that the C&D studies have proven is no more effective than baking soda-based cat litter.

Those claims have been consolidated in the Northern District of California, and Clorox moved for judgment on the pleadings. It said the action failed to plead injury in fact and that there is no claim that Clorox's product did not perform as advertised or that consumers found Fresh Step to be less effective than other brands.

U.S. District Judge Samuel Conti left several claims in tact Wednesday.

"As an initial matter, even if Fresh Step did eliminate cat odors, it did not perform as advertised if it was worse at eliminating odors than the baking soda-based cat litters. Further, if Fresh Step is in fact objectively inferior at eliminating cat odors, it is irrelevant that plaintiffs did not experience that inferiority first hand."

Additionally, the court must seriously consider the studies C&D performed.

"At this stage, the court must take all well-pleaded, factual allegations as true," Conti said. "According to the complaint, C&D studies show that baking soda-based cat litters are objectively better at reducing cat odors than Fresh Step. The notion that one cat litter is objectively better at fighting odors is not implausible. Indeed, that is the very claim that Clorox makes in its own advertisement. In sum, Clorox's arguments raise factual issues that are not suitable for determination on a motion for judgment on the pleadings."

Conti dismissed some claims for breach of express warranty, unjust enrichment and deceptive acts under various state laws with leave to amend.

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