Suit Over Fresh Step Cat Litter Is Going Strong

     (CN) – Clorox survived a challenge to its claim that cats “like” its Fresh Step litter, but a federal judge said the commercials could be misleading in other ways.
     The consolidated class action in San Francisco stems from a series of consumer complaints filed since January 2012. Though a Clorox competitor, Church & Dwight, won an injunction against the Fresh Step commercials around that time, it quickly dismissed its claims with prejudice after settling privately with Clorox.
     Consumers say that Fresh Step commercials make misleading claims about how well the product removes litter-box odors.
     Clorox moved to dismiss the complaint, but U.S. District Judge Samuel Conti upheld most claims last week.
     “The complaint clearly alleges that the challenged representations are false,” Conti wrote Friday. “The plaintiffs do more than allege that there is no competent scientific evidence to support Clorox’s claims; they allege that the competent scientific evidence shows that Clorox’s claims are objectively false.”
     Clorox did thwart claims concerning supposed cat preferences in litter, with Conti finding that some of its promotion amounted to nonactionable puffery. Though consumers said the commercials gave the impression of scientific testing, Conti found that dramatizations of cats stepping into boxes do not meet the grade.
     “Contrary to plaintiffs’ assertion, the depiction of four or five cats choosing to playfully jump into a litter box of Fresh Step rather than a litter box of the competitor’s brand does not give the impression of scientific testing – especially since this demonstration follows several videos of cats playing with boxes,” the 23-page decision states.
     “The overall message of the commercials is that cats prefer Fresh Step because they are ‘smart enough to choose the litter with less odors,'” Conti added. “No reasonable consumer would consider such a message to be a statement of fact.”
     As such, the consumers cannot advance claims over statements that cats “like” or “are smart enough to choose Fresh Step,” the court found.
     Though Conti dismissed that claim with prejudice, he said the consumers could amend a breach of warranty claim that failed for vagueness.
     Some of the lead plaintiffs in this action live out of state, but Conti found that it would be premature to strike the nationwide class and subclass allegations.
     “Since the parties have yet to develop a factual record it is unclear whether applying different state consumer protection statutes could have a material impact on the viability of plaintiffs’ claims,” the decision states.
     Precedent holds that out-of-state parties can invoke California statutory remedies when they are harmed by wrongful conduct occurring in California.
     “Here, plaintiffs have alleged that Clorox conducts substantial business in California and has its principal place of business and corporate headquarters in the state, decisions regarding the challenged representations were made in California, Clorox’s marketing activities were coordinated at its California headquarters, and a significant number of class members reside in California,” Conti wrote. “Thus, plaintiffs have sufficiently pled that Clorox’s conduct originated in or had strong connections to California.”

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