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Wednesday, August 29, 2012

Kitty Litter Lawsuit: Court Rules on "What Cats Like" and Which Litter Stinks Worse

Posted By on Wed, Aug 29, 2012 at 3:45 PM

click to enlarge Objection! - JANET WOLF
  • Janet Wolf
  • Objection!

Many cat owners have come off as foolish when claiming they know what their kitties desire. But litigation is usually avoided.

That's not the case with Oakland-based Clorox, maker of Fresh Step kitty litter. Commercials in which the company implied that cats actually prefer their product, which was allegedly superior to a competing Arm & Hammer line of litter, spurred a class-action lawsuit.

This gets better: An experiment cooked up by the plaintiffs in order to disprove Clorox's claims of odor superiority involved a "10-day sensory study involving a panel of persons trained in odor evaluation." Yes, professional cat-shit-sniffers were employed -- a whole panel of them. And they found, in a study commissioned by Clorox's competitor, Church & Dwight, that Clorox actually reeked worse than the product made by the people signing the checks. Another study by C&D revealed that cats don't seem to demonstrate a preference for carbon- or baking soda-based litter.

How ya like them (road) apples?

San Francisco District Court Judge Samuel Conti -- who must have been wondering how his career path led to a case involving the olfactory attributes of soiled kitty litter (with experts to weigh in, no less)  -- last week ruled largely in favor of Clorox. But not entirely.

In short, the complaint boiled down to the following: "Specifically, Plaintiffs target Clorox's alleged representations that: (1) carbon-based cat litter is more effective at eliminating cat odors than other brands that do not use carbon, and (2) cats choose carbon-based cat litter over other litters. Plaintiffs then allege that two scientific studies commissioned by C&D directly contradict these representations."

Clorox, somewhat disappointingly, defended its stance that "cats like" its product as "puffery" -- that is, "exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely." Those who buy kitty litter may not enjoy hearing Clorox reveal you're a fool if you bought its claims that cats prefer its chemicals, but, under the law, "'Mere' puffery is not actionable."

  • Janet Wolf
Janet Wolf
Conti agreed with Clorox on this point -- its ads may be silly, but they're not lawsuit-worthy: "Contrary to Plaintiffs' assertion, the depiction of four or five cats choosing to playfully jump into a litter box of Fresh Step rather than a litter box of the competitor's brand does not give the impression of scientific testing -- especially since this demonstration follows several videos of cats playing with boxes. ... The overall message of the commercials is that cats prefer Fresh Step because they are 'smart enough to choose the litter with less odors.' No reasonable consumer would consider such a message to be a statement of fact."

Thus rules the judge on the reasonableness of consumers being swayed by commercials involving cats jumping into boxes accompanied by messages about where cats prefer to defecate. "The Court dismisses Plaintiffs' claims to the extent that they are based on the statements that cats "like" or "are smart enough to choose Fresh Step."

Conti, however, held his nose at Clorox's claim that its product was scientifically proven to better conceal odors of cat excrement than baking soda-based competitors:

Clorox's representation that "Fresh Step . . . is better at eliminating litter box odors than Arm & Hammer Super Scoop" is likely to be considered a statement of fact by a reasonable consumer. Contrary to Clorox's argument, the statement is neither "vague" nor "highly subjective." Clorox identifies both a point of comparison -- Arm & Hammer Super Scoop -- and a metric for comparison -- elimination of cat odors.

Further, the beaker comparison depicted in the Second Commercials gives the impression that this representation is based on the results of a scientific study. Clorox's apparent representation that this beaker test is "[b]ased on [a] sensory lab test" furthers this impression.
The judge allowed the plaintiffs 30 days to append and refile their claim. Perhaps, in that time, they can scare up some more cat-shit-sniffing experts and bolster their case.

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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