In a television commercial for Fresh Step cat litter, two laboratory beakers sit side by side and swirl with a green mist, which represents a particular, acrid odor. It is a sanitized dramatization of an indelicate topic: cat droppings.
But a judge found it objectionable nonetheless.
On Tuesday, Judge Jed S. Rakoff of Federal District Court in Manhattan ordered Fresh Step’s manufacturer, Clorox, to temporarily stop showing the ad because it makes “insufficiently reliable” claims about the product’s ability to handle smells.
The commercial begins, delicately, with the premise of the clever cat. Cats bound across the screen, opening a door here, whacking at a dog there. “That’s why they deserve the smartest choice in litter,” a man’s voice says.
The advertisement notes that Fresh Step scoopable litter is made with carbon, which the spot claims is more effective at absorbing odors than baking soda. The advertisement then cuts to the beakers, one containing a substance labeled “baking soda,” the other with a black mass labeled “carbon.” The carbon quickly sops up the mist, while the other beaker remains foggy. A disclaimer at the bottom of the screen says the claim is based on a “sensory lab test.”
The lawsuit was brought by Church & Dwight, the company that makes Arm & Hammer cat litter and the only major manufacturer to use baking soda as a deodorizer, court papers said.
In his ruling, Judge Rakoff objected to the methods of those tests, which he called insufficiently true to the real-life habits of cats. (The company used sealed jars of excrement and allowed the samples to sit for about a day before the sniffing began.) Judge Rakoff also found it “suspicious” that throughout 44 tests, no panelist gave the excrement treated with carbon a grade other than zero, the lowest possible rating of smelliness.
Kathryn Caulfield, a spokeswoman for Clorox, said the company stood by the advertisement. Attempts to contact a lawyer for Church & Dwight on Wednesday night were unsuccessful.
Now, the suit will proceed to trial, where one can only imagine what sort of evidence the jury will be asked to examine.