Judge Jed S. Rakoff

Church & Dwight Co.’s (C&D) cat litter incorporates Arm & Hammer trademarked baking soda. Clorox’s “Fresh Step” litter uses carbon instead of baking soda. C&D sought to enjoin Clorox’s airing of an allegedly misleading commercial asserting that cat litter made with baking soda is less effective at eliminating odors than Clorox’s Fresh Step. C&D criticized as unrealistic and unreliable Clorox’s so-called “jar test,” wherein cat waste was sealed in jars for 22 to 26 hours before trained panelists evaluated odors on a scale devised by Clorox’s expert. All panelists gave a malodor rating of zero whenever cat excrement was treated with carbon. The court enjoined the commercial’s airing. Noting that cats do not seal their waste, it found that the jar test’s unrealistic conditions said little about how carbon performs in litter in circumstances relevant to a reasonable consumer. Finding it “highly implausible” that 11 panelists would repeatedly stick their noses in jars of excrement and report that they smelled nothing unpleasant, the court deemed the test unreliable. By cloaking itself in the authority of a “lab test,” Clorox made literally false claims going to the heart of a main reason for buying cat litter.