It is not every day that news about a false advertising law suit between the leading sellers of cat litter generates much interest outside of the feline trade industry. Church & Dwight (the makers of Super Scoop) claims that television ads which show cats rejecting the Super Scoop cat litter in favor of Clorox’s Fresh Step cat litter are disparaging. The law suit created quite a buzz in the media and even the Wall Street Journal couldn’t resist a pun or two about the case.
One commenter opined that Church & Dwight’s law suit was ridiculous and qualified as an “exceptional” case under the Lanham Act to warrant the award of attorney fees to the makers of Fresh Step.
But, will the case be dismissed as quickly as the commentator suggests? The Lanham Act provides for a cause of action for a false or misleading description or representation of a product. To prove the claim, the makers of Super Scoop will need to prove:
- the ad was false or misleading;
- that it was material in its effect on buying decisions;
- that there is a connection with interstate commerce; and
- the ad actually or likely will injure the plaintiff.
The key is what the consumer takes away from the ad. If the television ad simply said: “We think your cat will agree that Fresh Step is the best cat litter anywhere in the universe ” then the commentator might have a better argument that a judge or jury would find the ad is sheer puffery and the false advertising claim should fail.
But, that’s not what the ad said. Watch the television ad for yourself to see if you agree with the plaintiff’s argument that the entirety of the ad goes beyond puffery and makes or implies claims as to specific characteristics of the product. The plaintiff argued in the Complaint that: “The Clorox advertisements are unambiguous that the judges of whether Fresh Step is superior at eliminating odors are cats, not people. . . . But cats do not talk, and it is widely understood in the scientific community that cat perception of malodor is materially different than human perception. . . . It is not possible scientifically to determine whether cats view one substance to be more or less malordorous than another substance.”
When the television ad flashed the phrase: “Based Upon Lab Tests”, it became a lot more difficult for Clorox to argue that the claims are puffery. Instead, Judge Deborah Batts will likely focus on whether Clorox’s tests of eight cats were sufficiently reliable to permit a consumer to conclude with reasonable certainty that the results show that cats prefer Fresh Step.
Who do you think wins?