## Facts

- Clorox sold chlorine bleach products in Puerto Rico and competed in the laundry market against Proctor & Gamble (P&G).
- P&G marketed “Ace con Blanqueador,” a detergent containing a non-chlorine oxygen-bleach whitening system, and advertised it as producing maximum whiteness without chlorine bleach.
- P&G ran an advertising campaign featuring the Spanish tagline “Más blanco no se puede” (“Whiter is not possible”) and related promotions, including televised “Doorstep Challenge” segments with a local celebrity soliciting consumer praise for Ace.
- Clorox asserted the campaign conveyed that Ace alone was equal or superior to using detergent plus chlorine bleach for whitening, and that Ace’s “whitener” was comparable to chlorine bleach rather than a different type of additive.
- After Clorox complained, P&G modified the tagline to “Compare con su detergente… Más blanco no se puede” (“Compare with your detergent… Whiter is not possible”), but Clorox maintained that the campaign still misled consumers.
- Clorox submitted a consumer survey to support its claim that consumers understood the ads to say Ace matched or exceeded bleach in whitening power.

## Issues

1. Whether the complaint plausibly stated a § 43(a) Lanham Act false-advertising claim based on alleged false or misleading messages about Ace’s whitening performance and composition.
2. Whether the district court erred by sua sponte dismissing the Lanham Act claim under Rule 12(b)(6) while a preliminary-injunction motion was pending.

## Decision

- The First Circuit vacated the dismissal and remanded for further proceedings.
- The court held that, taking the pleaded facts as true and drawing reasonable inferences for Clorox, the allegations were sufficient to state a Lanham Act false-advertising claim.
- The court rejected resolving, at the pleading stage, whether the challenged slogan was nonactionable puffery, given the alleged context implying testable comparative performance claims.
- The court indicated that the district court prematurely weighed the plausibility of consumer deception and short-circuited fact development relevant to how the ads were understood.

## Legal Principles

- A § 43(a) false-advertising claim may rest on statements that are either literally false or literally true but misleading in context.
- For implied-message theories, what an advertisement communicates to consumers is generally a fact question; consumer survey evidence is commonly used to show deception or a tendency to deceive.
- On a Rule 12(b)(6) dismissal, courts must accept well-pleaded allegations as true and draw reasonable inferences in the plaintiff’s favor; the question is adequacy of the pleading, not proof on the merits.
- “Puffery” is not actionable, but courts should not label comparative slogans puffery at the pleading stage when the complaint plausibly alleges specific, measurable, misleading performance or composition representations conveyed by the overall campaign.

## Conclusion

The First Circuit held that Clorox plausibly alleged that P&G’s advertising campaign communicated actionable misleading or false messages about whitening superiority and product attributes under § 43(a), vacated the sua sponte Rule 12(b)(6) dismissal, and remanded for further proceedings, including consideration of interim relief on an evidentiary record.


Clorox Co. P.R. v. Proctor & Gamble Com. Co., 228 F.3d 24 (1st Cir. 2000)