• The Not-So-Sweet Smell of Unsuccessful Testing
  • January 9, 2012 | Author: Richard J. Leighton
  • Law Firm: Keller and Heckman LLP - Washington Office
  • A disgusting recent Lanham Act false advertising decision contains two important reminders about making sensory test establishment claims: Make sure your test proves what you advertise and be suspicious of implausible results.*

    BACKGROUND

    The parties market cat litters. Plaintiff produces the only major litter that relies on baking soda to reduce odors. Defendant's litter relies on carbon, which it advertised on television as being "more effective at absorbing odors than baking soda."

    That commercial showed a cat pawing in a litter box. It also contained a demonstration showing green gas flowing in two laboratory beakers containing substances labeled "carbon" and "baking soda." During the demonstration, a super stated that the superiority claim was "based on [a] sensory lab test."

    That test did not use cat litter. It involved jars containing cat urine and feces, some covered with carbon, some with baking soda, some uncovered as controls. The jars were sealed and allowed to sit for more than 20 hours before 11 unenviable panelists, trained for this test, smelled them at four different times (44 samplings).

    All panelists were reported as rating the smell of the carbon jar contents as being reduced 100 percent (to zero on a 0-15 scale) and that of the soda jar as being reduced only 32 percent (to 01.85).

    Plaintiff is alleging that the new claims were literally false by necessary implication because the test procedure was unreliable to prove a claim for cat litter odor and the unanimous test results in favor of Defendant were implausible. It moved for a preliminary injunction.

    DECISION

    The preliminary injunction was granted on both those grounds. Among other obvious but unusual factual findings, the court found that,

    In actual practice ... cats do not seal their waste, and smells offend as much during the first 22 hours as they do afterwards. [Defendant's test's] unrealistic conditions say little, if anything, about how carbon performs in cat litter ....


    * Church & Dwight Co., Inc. v. The Clorox Co., 11 Civ. 1865 (SDNY Jan. 4, 2012).