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Friday, June 14, 2024 | Back issues
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Kitty Litter Claims Fail Judge’s Smell Test

MANHATTAN (CN) - Clorox cannot air misleading commercials that make implausible smears against competing brands of cat litter, a federal judge ruled.

In early 2011, Clorox created a commercial with cats doing "clever" things, while the voiceover says: "We get cats. They're smart. They can outsmart their humans. Their canines. Unlock doors. They're also smart enough to choose litter with less odors."

U.S. District Judge Jed Rakoff summarized the ad in a 13-page order banning its future broadcast.

"Then a cat is seen entering a litter box and pawing through the litter as the voiceover continues, 'That's why they deserve the smartest choice in litter,'" he wrote. "The commercial then transitions to a demonstration that displays two laboratory beakers. One beaker is represented as Fresh Step and the bottom of it is filled with a black substance labeled 'carbon.' The other beaker is filled with a white substance labeled 'baking soda.'"

Church & Dwight Co., the manufacturer behind Arm & Hammer, said that the statement is clearly a shot at Super Scoop, their competing brand.

"While the second beaker is not identified as any specific brand of cat litter, Arm & Hammer is the only major cat litter brand that uses baking soda," according to the 13-page decision.

"Green gas is then shown floating through the beakers and the voiceover continues: 'So we make Fresh Step scoopable litter with carbon, which is more effective at absorbing odors than baking soda.' The green gas in the Fresh Step beaker then rapidly evaporates while the gas level in the baking soda beaker barely changes. During this dramatization, small text appears at the bottom of the screen informing the viewer that Clorox's claims are '[b]ased on [a] sensory lab test.'"

Rakoff said that Clorox's jar test used dubious methods.

"Clorox sealed the jars of cat waste for twenty-two to twenty-six hours before subjecting them to testing," Rakoff wrote. "In actual practice, however, cats do not seal their waste, and smells offend as much during the first twenty-two hours as they do afterwards. Thus, the Jar Test's unrealistic conditions say little, if anything, about how carbon performs in cat litter in circumstances highly relevant to a reasonable consumer."

Clorox made other claims that failed the smell test.

"In particular, C & D notes that the uniformity with which panelists found that cat excrement treated with carbon contained 'zero' malodor is highly implausible, and more likely reflects flaws in their in-house training or objectivity than any reliable result," the order states.

Church & Dwight commissioned a different test to boost its lawsuit, asking 158 cats to choose between Fresh Step and Super Scoop. Their study showed that six cats rejected the Super Scoop brand and eight turned away from Fresh Step.

"Put simply, Clorox, cloaking itself in the authority of 'a lab test,' made literally false claims going to the heart of one of the main reasons for purchasing cat litter," Rakoff concluded. "In such circumstances, where the misrepresentation is so plainly material on its face, no detailed study of consumer react is necessary to conclude inferentially that Clorox is likely to customers from C & D's products to its own unless the offending commercial is enjoined."

Famously outspoken, Rakoff is the federal judge currently sparring with the Security and Exchange Commision and Citibank over mortgage-backed securities that the bank sold to investors while allegedly calling them "a collection of dogsh!t" in internal emails.

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