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'Cats Do Not Talk': Kitty Litter Ad Litigation Expands Into Class Actions

Back in 2010, as I discussed in this post, Clorox ran television ads asserting that cats preferred the odor of Clorox's Fresh Step kitty litter over a competing product, Arm & Hammer's Super Scoop. The ads have since been pulled and no longer appear to be available online, but they featured video of real cats taking a whiff of Super Scoop kitty litter and appearing to reject it in favor of litter boxes containing Fresh Step. Cats are "smart enough to choose the litter with less odors," the ad's narrator explained.

The ads prompted Arm & Hammer to file a federal lawsuit against Clorox alleging that they were false according to "independently conducted research." As you may recall, Arm & Hammer's complaint noted (quite accurately, in my limited experience with cats) that "cats do not talk." It further argued that "it is not possible scientifically to determine whether cats view one substance to be more or less malodorous than another substance."

I joked at the time that the lawsuit seemed like the type of thing that would "lead one or more of the lawyers involved in the case to consider a career change," but, to the contrary, lawyers still appear to be lining up to get in on this sweet kitty litter action in the form of class action lawsuits. Indeed, Reuters reports that last week, a federal court in San Francisco ruled that separate consumer litigation can go forward on certain claims alleging that the Clorox advertising was false and misleading. 

In the decision last week, the judge threw out plaintiffs' claims based on Clorox's statements that cats "like" Fresh Step, or "are smart enough" to prefer it, as mere "puffery" [via The Am Law Litigation Daily, paid-access]. But the court allowed other claims to proceed that were "predicated on Clorox's representations that Fresh Step is better at eliminating odor than other baking soda-based cat litters."

Posted by Bruce Carton on August 29, 2012 at 04:35 PM | Permalink | Comments (3)


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