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OFF BEAT: Legal stink raised over cat litter ad claims

Posted On: Jan. 6, 2012 12:00 AM CST

A federal judge has temporarily barred Clorox Co. from running what a competitor alleges is a false and disparaging advertising campaign for its brand of cat litter.

Church & Dwight Co. Inc., the Princeton, N.J.-based maker of Arm & Hammer baking soda and its related cleaning products, initially sued Clorox last January over television commercials for Fresh Step cat litter. According to court documents, the spots claimed that cats prefer Fresh Step over Arm & Hammer's Super Scoop litter because Fresh Step was better at eliminating odors.

Oakland, Calif.-based Clorox Co. agreed to pull the ads, and Church & Dwight dropped its lawsuit. However, a new Clorox commercial appeared less than two weeks later.

“This time, Clorox upped the ante by making a superior odor elimination claim not simply against one variety of Arm & Hammer cat litter products, but the company's entire line of cat litter products,” Church & Dwight alleged in a second suit filed against Clorox last March.

On Wednesday in New York, U.S. District Court Judge Jed Rakoff granted Church & Dwight's request for a preliminary injunction preventing Clorox from running the ad until the lawsuit is settled.

In his decision, Judge Rakoff said Clorox's laboratory “jar tests” proving Fresh Step's claim of superiority over the Arm & Hammer products were “insufficiently reliable to meet the required legal standards,” and that the commercial would likely cause “irreparable harm” to Church & Dwight if the spot continued to run.

“It is highly implausible that 11 panelists would stick their noses in jars of excrement and report 44 independent times that they smelled nothing unpleasant,” Judge Rakoff wrote in his decision.

Church & Dwight has asked that a federal jury force Clorox to permanently scrap the ad and run “corrective advertising” to dispel the false claims. The company is also seeking to recover damages as well as any profit Clorox made as a result of the ads.