Judge Orders Clorox to Bury Deceptive Kitty Litter Ad

Taking a break from his public dustup with the Securities and Exchange Commission, United States District Judge Jed Rakoff of the Southern District of New York recently waded into the gritty depths of the kitty litter advertising world.  

In an opinion dated January 4, 2012, he preliminary enjoined The Clorox Company (“Clorox”) from airing a commercial that depicted Clorox’s carbon-based kitty litter as being more effective at absorbing odors than kitty litters that use baking soda for that purpose.  Plaintiff Church & Dwight Co., Inc. (“C & D”), which sells  the only major baking soda-based kitty litter on the market (under the “Arm & Hammer” brand), declared that Clorox’s claims of enhanced efficacy were false and sued to enjoin Clorox from airing this commercial in the future.

Clorox asserted both in the commercial and in court filings that its efficacy claims were based on sensory lab tests.  For these so-called “jar tests,” lucky Clorox researchers created multiple jars containing fresh cat feces or urine covered by either carbon or baking soda and sealed each jar for 22 to 26 hours. Eleven panelists were brought in to open of each of the different kinds of jars, smell the contents, and rate the malodorous nature of those contents on a scale ranging from zero (no odor) to fifteen (which, presumably, would smell something like an industrial dumpster in August).  These eleven panelists then repeated this test another three times for what must have been the worst focus group assignment in recorded human history.

There is no word on whether these panelists received pizza or some other compensation at the end of the odor-rating session that would bias their findings, but one would assume they were not smelling cat waste for free.  Regardless, Judge Rakoff found the results of the lab test suspicious, unreliable, and potentially biased.  He was wary of the data mainly because the panelists rated each of the 44 samples of cat feces covered in carbon a zero on the odor scale, indicating that none of the panelists could detect even the slightest bad odor from these samples.  In his words, “it is highly implausible that eleven panelists would stick their noses in jars of excrement and report forty-four independent times that they smelled nothing unpleasant.”  Throwing even more suspicion on these results was Clorox’s own data, in which sensory tests performed on its kitty litter alone, without any cat excrement, achieved malodorous scores greater than zero.

Even if the results of Clorox’s “jar test” were taken at face value, Judge Rakoff found that the test itself did not support the claims found in Clorox’s commercial.  Displaying an understanding of a fundamental issue faced by cat owners around the world, he noted that “cats do not seal their waste, and smells offend as much during the first twenty-two hours as they do afterwards.”  While Clorox’s data may show that it is more effective at eliminating odor after sealing waste in an airtight jar for twenty-two hours, this data did not support the necessary implication that the Clorox liter out-performed C & D’s product during its expected normal use. 

On the basis of the unreliability of Clorox’s data and the inapplicability of said data to the claims in the commercial, Judge Rakoff found that the commercial was “literally false” and likely to cause irreparable harm to C & D if Clorox were allowed to continue to air it.  Since this is only a preliminary injunction, Clorox may still prevail in the battle of dueling litters but for now this commercial is buried.

The case is Church & Dwight Co v. Clorox Co, U.S. District Court, Southern District of New York, No. 11-01865.