A New York judge has found it implausible that a panel of 11 testers would stick their noses into jars containing cat poop — repeatedly — and say that they couldn't smell anything in the jars of excrement treated with carbon.
Really?
The judge, U.S. District Court Judge Jed Rakoff (better known for being tough on Wall Street shenanigans), ruled Wednesday that Clorox Co. could not air ads about its Fresh Step kitty litter after rival company, Church & Dwight, claimed the ads were false. Rakoff ruled that the ads likely have caused Church & Dwight's business irreperable harm.
Rakoff issued a preliminary injunction to halt the ad, which began airing last February, while litigation continues.
In its commercial, Clorox featured what Church & Dwight described as "playful home videos" of cats engaging in "clever behavior," with a voiceover describing how cats are "smart enough" to choose litter with less odor.
It then showed green gas floating through two beakers. One held Fresh Step and a black substance labeled "carbon," and the other a white substance labeled "baking soda." The voiceover said: "We make Fresh Step scoopable litter with carbon, which is more effective at absorbing odors than baking soda."
Church & Dwight said the ad sent a false message that cat litter with baking soda fights odor less well than Fresh Step.
While not named in the ad, Arm & Hammer is the only major cat litter brand that uses baking soda.
Rakoff said Clorox's test assessing how litter fought odors was unreliable, noting that while Clorox sealed jars of cat waste for 22 to 26 hours prior to testing, "cats do not seal their waste."
The judge also agreed with a Church & Dwight expert that it was "highly implausible" that 11 testers could have repeatedly stuck their noses in jars of cat waste, and uniformly reported no odors from waste treated with carbon.
"Clorox's own evidence acknowledges that humans, even trained panelists, report smells even when none are present," he wrote in his ruling on Wednesday.
"We're disappointed by the court's ruling and stand by the truthfulness of our advertising," said Kathryn Caulfield, a spokeswoman for Oakland, California-based Clorox. "We intend to vigorously defend this matter."
Church & Dwight is based in Princeton, New Jersey, and had no immediate comment.
The case is Church & Dwight Co v. Clorox Co, U.S. District Court, Southern District of New York, No. 11-01865.
Reuters contributed to this report.
