## Facts

- Church & Dwight Co., Inc. sold Arm & Hammer cat litter marketed for odor control using baking soda; The Clorox Company sold Fresh Step cat litter marketed for odor control using activated carbon.
- Clorox aired a television commercial showing two beakers labeled “carbon” and “baking soda” into which green gas was pumped.
- The commercial depicted the gas disappearing in the “carbon” beaker but remaining in the “baking soda” beaker, conveying that carbon eliminates odor while baking soda does not.
- Church & Dwight alleged the commercial communicated a broad superiority message that carbon is categorically better than baking soda for cat-odor elimination, thereby denigrating its baking-soda-based product.
- Clorox relied on a proprietary “jar test” in which cat feces and urine were covered with carbon or baking soda, sealed about 24 hours, and then rated for odor intensity by 11 panelists across four repetitions.
- Clorox’s reported data showed all 11 panelists gave carbon jars a “0” odor rating in all four trials, while baking-soda jars were rated malodorous overall.
- Church & Dwight challenged the plausibility and reliability of the uniform “0” results and argued the test conditions did not reflect real-world litter use.
- Church & Dwight sued under Lanham Act § 43(a) and sought a preliminary injunction to stop the advertisement pending trial.

## Issues

1. Whether the commercial’s net impression was likely literally false or misleading under Lanham Act § 43(a) by conveying that activated carbon eliminates cat odors while baking soda does not.
2. Whether Clorox’s testing sufficiently and reliably substantiated the broad comparative superiority message conveyed, such that the ad could avoid being treated as an unsupported establishment claim.
3. Whether Church & Dwight satisfied the requirements for a preliminary injunction, including likelihood of success on the merits and irreparable harm.

## Decision

- The court granted Church & Dwight’s motion for a preliminary injunction.
- The court found a likelihood of success on the merits because the advertisement conveyed a clear comparative claim of categorical carbon superiority that was not adequately supported by reliable testing.
- The court concluded the jar test’s results and design raised serious reliability concerns and did not match conditions of ordinary consumer use.
- Because the commercial was likely literally false as a test-supported (establishment-type) claim, consumer survey evidence of deception was not required at the preliminary-injunction stage.
- The court found irreparable harm from likely false comparative advertising between direct competitors, and held the balance of hardships and public interest favored injunctive relief.
- Clorox was enjoined from further dissemination of the challenged commercial and materially similar advertisements.

## Legal Principles

- A Lanham Act § 43(a)(1)(B) false advertising claim may be shown by proving an advertisement is literally false or, if literally true, misleading and likely to deceive a substantial portion of the audience.
- When a claim is literally false, proof of actual consumer deception (such as survey evidence) is generally unnecessary to obtain injunctive relief.
- For establishment claims (express or implied messages that “tests prove” a performance proposition), the supporting tests must be sufficiently reliable and appropriately designed for the claim conveyed; inadequate substantiation can render the claim literally false.
- Preliminary injunctive relief requires showing likelihood of success on the merits, irreparable harm, that the balance of hardships favors the movant, and that the public interest is not disserved.
- In direct-competitor comparative advertising, reputational and market-share harm from likely false claims can be immediate and difficult to quantify, supporting irreparable harm.

## Conclusion

The court preliminarily enjoined a cat-litter comparative commercial because its net impression communicated a broad, science-backed superiority claim for activated carbon over baking soda that was likely literally false or misleading given unreliable and non-representative testing, and because the resulting competitive and reputational harm warranted immediate injunctive relief under the Lanham Act.


Church & Dwight Co. v. Clorox Co., 102 U.S.P.Q.2d (BNA) 1453 (S.D.N.Y. 2012)