Clorox, the maker of Fresh Step Cat Litter, has been ordered by a New York Judge to stop running commercials he described as “literally false.” In an order dated January 3, U.S. District Court Judge Jed Rakoff ruled in favor of Super Scoop and ordered Clorox to stop running its television ads claiming Fresh Step leaves litter boxes smelling cleaner than its competitor’s, said Reuters.
The controversy began in 2010, when Clorox began airing a Fresh Step ad that claimed that when cats are given a choice, they prefer Fresh Step to Arm & Hammer’s Super Scoop litter. After the maker of Super Scoop filed suit, Clorox agreed to stop airing the commercials, said Reuters.
Clorox then began running new commercials claiming carbon, the key odor eliminating element in Fresh Step, was better than baking soda—Super Scoop’s main active ingredient—at eliminating litter box odors, said Reuters. Church & Dwight, the maker of Super Scoop, sued again. Judge Rakoff ruled in favor of Super Scoop and ordered an immediate ban on the Fresh Step commercial as the case continues, saying “Clorox, cloaking itself in the authority of ‘a lab test,’ made literally false claims going to the heart of one of the main reasons for purchasing cat litter, reported Reuters.
Last year, Clorox created a commercial with cats doing what the judge described as “clever things” as a simultaneous voiceover said: “We get cats. They’re smart. They can outsmart their humans. Their canines. Unlock doors. They’re also smart enough to choose litter with less odors,” wrote Judge Jed Rakoff in his 13-page ban. “Then a cat is seen entering a litter box and pawing through the litter as the voiceover says, ‘That’s why they deserve the smartest choice in litter,'” Judge Rakoff added. “The commercial then transitions to a demonstration that displays two laboratory beakers. One beaker is represented as Fresh Step and the bottom of it is filled with a black substance labeled ‘carbon.’ The other beaker is filled with a white substance labeled ‘baking soda,'” the document went on, said Courthouse News.
“While the second beaker is not identified as any specific brand of cat litter, Arm & Hammer is the only major cat litter brand that uses baking soda,” said the judge in the 13-page decision, according to Courthouse News. The paper described the beakers filled with green gas meant to represent litter odor. The carbon destroys the gas, which remains swirling in the baking soda beaker, explained Reuters, citing the paper.
Judge Rakoff said Clorox’s jar test utilized dubious methods. “Clorox sealed the jars of cat waste for twenty-two to twenty-six hours before subjecting them to testing,” Rakoff wrote. “In actual practice, however, cats do not seal their waste, and smells offend as much during the first twenty-two hours as they do afterwards. Thus, the Jar Test’s unrealistic conditions say little, if anything, about how carbon performs in cat litter in circumstances highly relevant to a reasonable consumer.”
In its testimony, Clorox said it utilized an in-house “jar test” that involved 11 people trained in grading smells on a scale of 0 to 15, said Reuters. The group then, said Clorox, smelled samples of cat waste combined with carbon, baking soda, or nothing that were sealed in jars for about a day. “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,” wrote the judge, said Reuters.