11 Jan 2011

Tempest in a Cat Box

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Law.com has today a really splendid example of preposterous litigation for the Water Olson collection.

Pretty cut and dry. I mean, I think we can all agree that the yellow cat clearly preferred the odor of Clorox’s Fresh Step over Arm & Hammer’s Super Scoop, right?

But in a lawsuit that I predict will lead one or more of the lawyers involved in the case to consider a career change, Arm & Hammer has filed a federal lawsuit against Clorox alleging false claims that cats prefer Fresh Step over Super Scoop. Arm & Hammer says “independently conducted research” proves otherwise.

Specifically, the Arm & Hammer complaint charges that

    “The Clorox advertisements are unambiguous that the judges of whether Fresh Step is superior at eliminating odors are cats, not people,” the suit says.

    “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,” the company argues. “It is not possible scientifically to determine whether cats view one substance to be more or less malodorous than another substance.”

Arm & Hammer adds that “cats will not reject Super Scoop to any meaningful degree and will do so no more frequently than they will reject Fresh Step.”

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Kimball Corson

So while consumers lack standing to assert claims of false advertising and only competitors may, we are suddenly to be caught up in such a squabble keying on what cats think? Is this matter of such importance that it should be adjudicated by a three judge panel of felines? My take is the oder issue should be resolved by the human nose inasmuch as the owner paid and in fact cares the most. My cat informs me cleaning and change frequency are the real issues and only owners care about oder. She’ll testify but only if properly subpoenaed.



Harl Delos

Clorox has a long history of fraud in their advertising. In the 1970s, I worked in the product development labs for a company that no longer exists, Drackett, which competed against Clorox.

Drackett’s Crystal Drano consisted of lye crystals and sharp shards of aluminum. Lye and fat react to produce soap. Lye and aluminum react, producing enough heat to make water in the trap boil. Not only did you have hot, soapy water cleaning the drain, but the shards of the aluminum in the roiling water would literally cut through hair and sludge.

Clorox’s Liquid Plumbr consisted of liquid lye and concentrated bleach. Bleach will eat away hair, and lye would attack fat, but because it was a cold reaction, it was v-e-r-y slow.

Somehow, though, the Clorox ads showed Liquid Plumbr to be far more effective. How did they do it? They “sorted” through the Crystal Drano and removed the aluminum crystals, so that Liquid Drano had a cold reaction – and nothing to work against hair.

Drackett did a live demonstration for network execs, and the networks banned the fraudulent advertising, but these days, with so many cable networks, that’s obviously impractical.

Fraudulent advertising doesn’t just steal from competitors, but from the consumer, and by making ads less effective, from the networks as well. Suits by competitors works so much better than regulation by bureaucrats who don’t really have a reason to care.



Kimball Corson

On a more serious note, Lanham Act claims of false or fraudulent advertising do matter to competitors’ bottom lines or they wouldn’t incur the attorneys fees to do something about it. Such fees are not slight, be assured, as I have litigate several such cases.

Only in exceptional cases may the court award reasonable attorneys fees to the prevailing party, so fee awards are not at all customary. A plaintiff must hope primarily for injunctive relief and perhaps a damage award for the past, if it can prove injury and quantify it.



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