SC Johnson & Son, Inc. v. Clorox Co.

Citations: 930 F. Supp. 753; 1996 U.S. Dist. LEXIS 10700; 1996 WL 406180Docket: 9:95-cv-02803

Court: District Court, E.D. New York; July 18, 1996; Federal District Court

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S.C. Johnson, Son, Inc. (SCJ) filed an action against The Clorox Company under the Lanham Act for false advertising, seeking a preliminary injunction to prevent Clorox from airing a television commercial that makes specific claims about the effectiveness of their respective roach control products: SCJ's RAID Max IV Plus Egg Stoppers and Clorox's COMBAT Super-Bait. The challenged commercial, titled "Weapon," asserts that COMBAT Super-Bait kills "up to 98%" of roaches, whereas RAID Max Plus kills only "no more than 60%." 

The court conducted a nine-day hearing, reviewing extensive evidence and witness testimonies. Although the court found Clorox's testing protocol to be an effective measure for assessing product efficacy, it concluded that the commercial's unqualified claims about Super-Bait's superior effectiveness could not be substantiated for home use. The court determined that SCJ met its burden of proof, leading to the granting of SCJ's motion for a preliminary injunction against the commercial. The findings emphasized that the commercial misrepresented the results of Clorox's tests by failing to account for the variability of consumer environments.

RAID Max Plus is advertised as "KILLS NO MORE THAN 60%," while SuperBait is promoted with the claim "KILLS UP TO 98%." The commercial for these products began airing on June 26, 1995, across the New York metropolitan area and nationwide. SCJ filed a lawsuit on July 13, 1995, seeking a temporary restraining order, which was denied on July 20, although expedited discovery was permitted. An evidentiary hearing for SCJ's preliminary injunction motion occurred over nine days in March 1996, with Clorox planning to resume broadcasting the commercial unless enjoined.

Both RAID Max Plus and SuperBait are over-the-counter products aimed at treating German cockroach infestations, the most common household pest in the U.S., found in various housing types and geographic locations. Consumers spent over $300 million on roach control in 1995, as cockroaches pose health risks by contaminating food and acting as allergens. Roach baits, like SuperBait and Regular COMBAT, consist of a bait station containing food mixed with insecticide. Both Clorox products contain hydramethylnon, a slow-acting poison that impairs cockroach movement. SuperBait has more hydramethylnon and is formulated to attract a wider range of roaches, although their toxic formulations are identical.

Dr. Shapas from Clorox indicated that while the increased hydramethylnon in SuperBait is unlikely to affect primary kill (direct roach deaths), it may enhance secondary kill (roaches dying from consuming the excrement of poisoned roaches). However, Clorox's field test showed only a modest effectiveness difference. RAID Max Plus contains 12 roach baits and 3 containers of Hydroprene, an insect growth regulator that sterilizes certain roaches. The active insecticide in the baits is chlorpyrifos (Dursban), a fast-acting nerve poison that can cause spasms and death in roaches within hours. RAID Max Plus was initially launched in 1989 with sulfluramid but was recalled in 1994 due to EPA concerns and relaunched in 1995 with Dursban. Despite Clorox's negative characterization of Dursban baits, consumer tests indicate that RAID Dursban baits are rated similarly to Clorox's products, with no perceived performance differences among RAID Roach Bait, RAID Max, and COMBAT in blind testing. SCJ leads total roach control product sales, but Clorox dominates the bait market with a 57.7% share in 1995, compared to SCJ's 18.5%. Unlike targeted sprays, roach baits are passive and require roaches to encounter and ingest them, making them less reliable. Even effective baits, such as hydramethylnon, can be rendered ineffective due to the nature of passive bait systems, as noted by Dr. Austin Frishman in a trade journal.

Efficacy of roach baits is influenced by various factors beyond the poison's effectiveness, including sanitation conditions, which can significantly impair bait performance. Baits are most effective when competing food sources are minimized, making control in unsanitary environments less effective than in clean ones. Other factors affecting bait efficacy include clutter, the foraging patterns of roaches, and human behavior. Effective bait placement is crucial; baits must be positioned between cockroach harborages and their feeding areas. Roaches typically inhabit dark, less visible locations, such as cracks and crevices, and forage at night within a limited range of a few feet from their harborages. 

To achieve effective control, baits should be placed near all identified harborages, as untreated areas will allow roaches to survive, undermining treatment effectiveness. According to Clorox's expert, even optimal bait placement may only reduce roach populations by 50%, while a 96% kill rate is required for significant control. However, credible evidence suggests that most consumers are unaware of all cockroach harborages in their homes, as these locations are dark and hidden. Field studies indicate that infested apartments can contain between 30 to over 300 harborages, making it highly unlikely for consumers to identify or locate them all accurately.

Clorox and SCJ utilize diagrams on their roach bait product labels to guide consumers in placing baits in 'most important locations' and those yielding 'the best results,' indicating awareness that many consumers lack knowledge about optimal bait placement. Placement guides accompany most bait products to enhance effectiveness by directing users to install baits in areas that maximize cockroach contact. Additionally, a professional pest control operator (PCO) industry exists, where operators leverage training and specialized tools, such as mirrors and sticky traps, to identify cockroach harborages and effectively position bait stations. Dr. Frishman testified that even trained PCOs sometimes struggle to place baits near all harborages, emphasizing the importance of targeting peripheral areas for effective infestation control. He noted that improper placement can significantly reduce the effectiveness of baits, requiring professionals to think strategically about cockroach behavior. Research indicates that under non-optimal conditions, baits alone may not eradicate cockroach populations; they typically reduce numbers but require additional measures for sustained control. Donald Reierson, a notable entomologist, corroborated this view, stating that except in ideal scenarios, bait effectiveness may be limited, and modest expectations for control should be maintained.

Greater control over pest infestations typically necessitates the use of baits in conjunction with other methods. Pest Control Operators (PCOs) rely on effective treatments for their livelihoods; baits are perceived as safer and easier to use compared to sprays and dusts. Despite this perception, only about 10% of PCOs utilize baits exclusively, with Dursban sprays remaining popular among them. Similarly, fewer than 20% of consumers facing roach issues opt to use baits exclusively, despite extensive advertising by Clorox. 

Clinical evidence indicates that SuperBait does not consistently achieve the 98% control rate advertised; instead, field tests show average reductions of only 29.9% to 84.4%. Clorox developed a new testing protocol in 1994 after dissatisfaction with prior results, using it to compare SuperBait with RAID Max Plus, leading to a proposed commercial claiming 'SuperBait kills 98%, RAID Max only 55%.' However, when Clorox learned that RAID Max Plus would reformulate to include Dursban, they recognized that the comparative claims were invalid and informed their advertising agency. As a result, Clorox faced challenges in substantiating their claims ahead of a planned commercial shoot, leading to the execution of an in-house laboratory test to compare the products involved.

Clorox's First Laboratory Test involved testing three products—SuperBait, RAID Max Plus, and Regular RAID—in small arenas, each containing twenty cockroaches and one bait over a 20-day period. The results showed SuperBait killed 98% of cockroaches, while RAID Max Plus killed 60%, and Regular RAID killed 80%. This test was the only substantiation for the claim in Clorox's Commercial stating "Combat SuperBait kills up to 98%. The other guys, no more than 60%," as identified in the Claim Index and supported by a memo from Dr. Ochomogo summarizing the test results.

A subsequent Second Laboratory Test compared SuperBait and RAID Max Plus against Dursban. Conducted before the Commercial aired, this test revealed that RAID Max Plus with Dursban killed an average of 92.67% of cockroaches, contradicting Clorox's intended message in the Commercial. Clorox's scientist, Dr. Silverman, expressed satisfaction with the testing methodology but later claimed the Second Laboratory Test was irrelevant, arguing it used susceptible roaches and did not measure efficacy by comparing the number of insects killed to the total present.

No precise records were maintained regarding the initial number of roaches for testing or those added during the experiment, which hindered the ability to derive accurate percent kill data. Dr. Silverman, Clorox's scientist, acknowledged the approximate number of roaches and deemed the testing scientist, Cara Drouin, precise. The Court finds that the reported approximate roach population and the precise mortality data allow for valid quantitative conclusions about the effectiveness of SuperBait and RAID Max Plus, despite a margin for error. Clorox's argument against the relevance of the Second Laboratory Test due to the roaches' lack of Dursban resistance is deemed meritless, as Dursban resistance is not widespread and the test remains relevant for evaluating product performance in most U.S. locations. The Court concludes that the Second Laboratory Test is significant in assessing Clorox's claim that RAID Max Plus kills "no more than 60%" of roaches, and neglecting this test undermines the reliability of their claim.

In addition to the First Laboratory Test, Clorox presented four field tests to support its commercial claims, which included tests conducted in Ocala, Miami, Sanford, and Puerto Rico. However, Clorox did not mention these tests in internal documents prior to litigation, raising questions about their validity. The Ocala Field Test, the only one conducted on the currently marketed formulas of SuperBait and RAID Max Plus containing Dursban, showed a mean kill rate of 97.05% for SuperBait compared to 50.72% for RAID Max Plus Egg Stoppers.

The 1994 field tests for Clorox's SuperBait demonstrated significant efficacy in reducing cockroach populations across multiple locations. The Miami test revealed a 99.2% mean reduction in roaches, outperforming RAID Max Plus Egg Stoppers, which achieved only a 50.9% reduction. In Sanford, Florida, SuperBait resulted in a 94% reduction after twelve weeks despite a substantial infestation. A subsequent test in San Juan, Puerto Rico, showed a 97% reduction in treated apartments, while untreated ones saw a 63% increase in cockroach numbers. 

All tests employed a methodology developed by Clorox employee Donald Bieman in March 1994, which involves using sticky traps to assess roach populations, applying bait treatments, and conducting follow-up monitoring. Notably, the Ocala test was unique in also involving RAID Max Plus with Dursban and began after a related commercial was filmed. 

The Clorox protocol significantly deviated from standard testing methods, as it required a trained professional to inspect each apartment for cockroach harborages and utilize sticky traps for both locating and monitoring roach populations. This inspection could take up to two hours and informed the strategic placement of baits, which varied by location based on the inspection results. Traditional methods, in contrast, typically use a uniform number and placement of baits across all test apartments.

The new Clorox protocol mandates a minimum of 3 grams of bait, equivalent to two bait stations, at each bait placement location. In the Ocala test, Mr. Bieman utilized three baits at each site, while in the Sanford and Puerto Rico tests, he employed one large bait station for American roaches, equating to three stations for German cockroaches. Clorox justifies this bait quantity due to concerns about bait depletion, where all bait may be consumed before eradicating a roach infestation.

Clorox asserts that its protocol is scientifically valid for testing roach bait products both internally and under real-world consumer conditions. However, this view is not widely accepted outside of Clorox, with the sole exception being Clorox's paid expert witness, Mr. Boase. Although Clorox claims endorsement from Dr. Richard Brenner of the USDA, his deposition clarifies that he did not endorse Clorox's testing methods as valid for assessing the effectiveness of cockroach population reductions in homes. He also declined to sign a letter asserting that Clorox's methodology improves accuracy and precision over previous methods.

Regarding SCJ's motion, the validity of Clorox's methodology is irrelevant if it does not accurately measure the performance claims made to consumers. The Commercial explicitly states how SuperBait and RAID Max Plus perform in consumer settings. Therefore, Clorox's protocol must demonstrate how these products work according to label instructions in real-world use to substantiate its claims. The new protocol fails in three significant ways, notably due to Mr. Bieman's involvement, which introduces an unrealistic aspect compared to typical consumer application. Professional pest control operators (PCOs) possess superior training and resources to effectively locate cockroach habitats and apply baits optimally, unlike the average consumer.

The average consumer lacks the expertise of Mr. Bieman in locating cockroach harborages, making professional pest control operators (PCOs) necessary. Mr. Bieman's assertion that consumers are more capable than PCOs in this regard is deemed not credible. Dr. Frishman, a PCO, acknowledges that his and Mr. Bieman's skills in finding harborages surpass those of homeowners, particularly in hard-to-reach areas, although he sometimes relies on homeowners' input. Precise placement of bait near harborages is crucial for effective pest control, and Mr. Bieman's superior expertise likely contributed to significant reductions in cockroach populations in tests.

The new Clorox protocol for bait usage contradicts product label instructions, which recommend using all 12 bait stations for thorough roach control. In the Ocala field study, Mr. Bieman used only half the recommended number of bait trays in some apartments, resulting in inadequate population reduction. Conversely, in many tests, Clorox used significantly more than the labeled amount, averaging over two boxes of baits per apartment. Clorox claims the SuperBait label allows for "at least" 24 baits for heavy infestations, but the label merely states that such situations "may require" two boxes and does not clarify what constitutes a "heavy" infestation. There is no evidence to define consumer perceptions of this term.

Evidence indicates that consumers typically use less than a full package of baits, averaging 4.9 baits, with only 10.5% applying 11 or more at once. Although about 24% of survey respondents replace their baits more frequently than every three months, there is no justification for conducting a field test with up to 24 baits, as the SuperBait label does not instruct consumers to use more than two boxes, even for heavy infestations. The Court finds that the label does not imply that more than 24 bait stations would be necessary at any time, contradicting Mr. Bieman's testing practices. Clorox's own documents acknowledge that the number of bait stations used in tests exceeded label recommendations.

The label also does not suggest placing multiple baits at each location, a practice adopted by Clorox in its new protocol, which cannot be justified by concerns over bait depletion. Bait depletion is common, as the products contain a small amount of bait, making it difficult for consumers to determine if they are depleted. Dr. Koehler testified that Clorox's methodology, which involved using a pest control operator (PCO) and exceeding 24 baits while placing multiple baits at each location, artificially enhanced SuperBait's performance, leading to results not reflective of typical consumer usage.

Clinical evidence supports Dr. Koehler's claim regarding the inflated efficacy of SuperBait under the new protocol, with reductions in roach populations reported in the high 90s in Clorox's field studies, compared to often less than 50% with the previous methodology. Clorox's witness, Mr. Boase, acknowledged that if only one bait had been placed at each location in the Ocala field study, the results would likely differ.

The trial's results could vary significantly depending on whether one bait station was used for either product, due to potential bait depletion in certain locations, particularly in heavily infested apartments. This concern is central to the three-bait-per-location protocol aimed at addressing and mitigating bait depletion issues. Evidence from Clorox witnesses indicates that Mr. Bieman and Clorox designed this new protocol to minimize real-world variables affecting the performance of SuperBait and RAID Max Plus when used as directed. Mr. Boase highlighted that researchers often overlook the challenges posed by heavy infestations and bait depletion, but Clorox’s protocol acknowledges these issues and seeks to reduce variability in trial results.

Dr. Shapas likened the protocol’s goal of eliminating variances to focusing a telescope for clearer observations, but Dr. Koehler argued that the primary purpose of scientific tests is not necessarily to reduce variance. He emphasized that the inherent variability of product performance, as experienced by consumers using the products according to label directions, must be acknowledged. Attempts to modify application methods to reduce this variance are inappropriate, as they do not reflect actual consumer experiences.

Furthermore, the new Clorox methodology is criticized for failing to accurately test the effectiveness of roach bait products as they would be used by consumers in real-world settings, as it intentionally removes factors that could influence product performance. The trials for both Clorox and SCJ have predominantly taken place in low-income public housing in Florida, primarily for practical reasons, such as the availability of closely situated infested apartments that facilitate adequate replication and consistency in construction.

Low-income public housing presents significant challenges for roach bait effectiveness due to poor sanitation and clutter, which provide alternative food sources for roaches and hinder their encounter with baits. Baits are most effective when competing food sources are minimized, leading to lower control levels in unsanitary environments compared to cleaner ones. Clorox acknowledged the need to test products in challenging environments, yet its claims about RAID Max Plus's efficacy—stating it kills "no more than 60% of your roaches"—are questionable when considering the conditions in which the tests were conducted. The commercial claims that SuperBait kills "up to 98% of your roaches" without qualification, raising concerns about the validity of these comparisons in less demanding environments. Evidence indicates that chlorpyrifos resistance significantly impacted RAID Max Plus's performance, particularly in Ocala, where Clorox was aware of its anticipated poor efficacy. Despite this, Clorox did not investigate whether the level of Dursban resistance observed in Ocala was representative of other U.S. households. Testimony revealed that Clorox did not consider alternative testing locations outside public housing in Florida, despite knowledge of the expected performance issues related to Dursban resistance.

Clorox claims that its advertising regarding Dursban's effectiveness is supported by the Ocala test results; however, it overlooks the specificity of Dursban resistance at public housing sites in Ocala, Florida, questioning its applicability to other residential settings across the U.S. SCJ has provided evidence, including expert testimony from Dr. Donald G. Cochran, Professor Emeritus of Entomology, asserting that the resistance observed in Ocala is not representative of broader national resistance levels due to differing demographics and climates. Dr. Cochran explains that for resistance to develop, the genetic trait must be present in a population, requiring extensive, continuous exposure to the insecticide over two to three years, typically seen in commercial settings and low-income public housing where regular pest control is mandated. This aligns with SCJ's internal memos highlighting that Dursban resistance is expected primarily in areas with frequent pesticide use. The Ocala site had a history of regular treatments. Additionally, Dr. Cochran's views are supported by Dr. Frishman, who noted that Dursban resistance is infrequent on Long Island and that pest control operators can still effectively manage infestations with Dursban in many regions, suggesting that continued use of the insecticide indicates its effectiveness.

History indicates that when pest control operators (PCOs) encounter high resistance levels that prevent effective roach control with certain insecticides, they abandon those products, as seen with chlordane in the 1950s and malathion later. In contrast, Dursban is still widely used despite evidence of geographical resistance. Dr. Cochran testified that while Dursban resistance exists, it is not as widespread as Clorox suggests. Clorox claims more than half of the roach strains tested by Dr. Cochran are resistant to Dursban, interpreting this as pervasive resistance in the U.S. However, Dr. Cochran argued that his sample is biased toward strains where control failures indicate resistance, corroborated by Dr. Frishman's publication encouraging PCOs to submit roaches suspected of resistance for testing.

Clorox's marketing asserts that SuperBait kills nearly all roaches and is more effective than RAID Max Plus. However, a comprehensive field test conducted by Clorox in 1993, involving SuperBait and Regular RAID (which is equivalent to RAID Max Plus), showed that SuperBait and Regular RAID had similar effectiveness, with mean reductions of 29.9% and 26.7%, respectively, after 12 weeks. Additionally, a separate study indicated that RAID Dursban bait with Egg Stoppers performed comparably to SuperBait, with the RAID product showing superior performance at various intervals. These findings challenge Clorox's claims regarding SuperBait's efficacy.

Dr. Gold's statistical analysis indicated that the old formulation of Combat (Maxforce) performed better than the new SuperBait, while the new Dursban bait was comparable to both Combat formulations. Clorox began selling SuperBait in the winter of 1993, but Dr. Shapas testified that the Krystar formulation did not become commercially available until 1994. Clorox did not produce documentary evidence to support this testimony, which was deemed unreliable given Dr. Silverman's acknowledgment of Clorox isolating the glucose issue by 1992 and evidence of field tests using the Krystar formula as early as that year. 

Despite potential involvement of the glucose version of SuperBait in the Gold test, its results remain relevant. Dr. Silverman and Mr. Bieman noted that glucose aversion is sporadic, and Clorox has not identified any glucose-averse roaches in Texas or most other states except for isolated instances in Florida and California. The only field test comparing glucose and fructose versions of SuperBait showed no statistically significant differences.

In contrast to Commercial claims that SuperBait kills "just about all" or "up to 98%" of roaches, Clorox's field tests yielded mean reductions of 50% or less, with specific tests showing reductions of 29.9% after 12 weeks. Clorox's methodology for these tests adhered to standard practices used by urban entomologists, despite Clorox’s criticisms of the SCJ field test protocols. Clorox's own Dr. Silverman acknowledged in a peer-reviewed article that the Krystar formulation achieved population reductions between 42-85%, contradicting the exaggerated claims made in the Commercial. Clorox's attempts to discredit the SCJ field test methodology have been undermined by its own witnesses who have rejected this position.

Drs. Owens and Koehler confirmed the existence of standard elements in field testing methodologies used by U.S. urban entomologists, which include consistent bait numbers, specific placement of baits and traps, and uniformity across apartments. These standards have been utilized by nearly every entomologist mentioned in the trial and were also employed by Clorox and Cyanamid in their efficacy trials prior to the litigation. Mr. Bieman acknowledged he conducted numerous tests using these standards while working for both companies, asserting that this methodology was widely accepted. Despite his later claims that the standard elements contradict label directions, the relevance of this assertion is diminished by the nature of the litigation, which does not dispute SCJ's advertising claims based on these testing results. Additionally, Bieman's views conflict with his supervisor Dr. Silverman’s pre-litigation statements, which claimed Clorox's previous methods adhered to label directions. Clorox has also relied on tests conducted by SCJ using these standard elements and their expert witness refrained from criticizing the scientific validity of these tests.

Dr. Owens and Dr. Koehler testified that field testing with standard elements adheres to product label directions, supported by Dr. Silverman's pre-litigation chart and reports from other U.S. entomologists not involved in the litigation. They noted that bait stations were set up according to label recommendations. Mr. Bieman and Mr. Boase acknowledged that U.S. entomologists consistently follow these standard elements. The testimony suggests it is implausible that the entire U.S. urban entomology community would employ testing methods inconsistent with label instructions. 

A comparison of product labels with the standard elements shows alignment, such as the recommendation to use all 12 baits for effective roach control. Although labels suggest additional baits for heavy infestations, perceptions of infestation levels can vary, particularly in low-income housing where roaches may be hidden. Clorox's field tests focus only on kitchens, while product labels recommend placing baits in other rooms during heavy infestations. Evidence indicates consumers typically use fewer than 12 baits, making the standard use of 12 per apartment consistent with label directions.

While one bait station per location aligns with the labels, placing multiple baits does not, as the labels do not instruct consumers to do so. Baits are placed in compliance with label diagrams, recognizing that consumers may lack the expertise of professional pest control operators in identifying cockroach hiding spots. Researchers using standard elements ensure baits are placed in areas indicated by the labels, effectively marrying instructions to place baits where roaches are seen with designated bait locations.

Clorox contends that RAID Max Plus is ineffective due to Dursban's properties, specifically its repellency and the phenomenon of bait shyness, which influences cockroach feeding behavior. Repellency refers to the active ingredient’s vapor that discourages roaches from approaching the bait, while bait shyness indicates the avoidance of unpalatable bait. The court supports Clorox's argument, recognizing that studies, including those by SCJ scientists, have identified Dursban as a repellent, corroborating claims of its ineffectiveness.

However, the court clarifies that the case is not solely about the inherent characteristics of the products but rather the validity of the efficacy claims supported by testing. The key issue lies in whether the testing conducted justifies the claims made by Clorox, rather than a qualitative assessment of the active ingredients.

Furthermore, the court examines whether the effects of Dursban repellency and bait shyness are significant enough to counteract the impact of Dursban resistance, which the court finds is not widespread across the U.S. Ultimately, the court concludes that the repellent effects and bait shyness associated with Dursban do not materially undermine the testing results that reflect RAID Max Plus's performance issues linked to Clorox's oversight of the non-pervasive nature of Dursban resistance.

The court also notes a significant disparity in performance between Regular RAID (with Dursban) and RAID Max Plus, indicating that Regular RAID achieved an 80% kill rate in the first laboratory test, while RAID Max Plus achieved only 60%. SCJ argues that Clorox overlooked this pertinent data, but Clorox maintains that the two products should not be directly compared due to their differences. The testimonies of expert witnesses, including Dr. Koehler, are highlighted as central to the parties' arguments.

Dr. Koehler testified that the active ingredient hydroprene can both impair and enhance the toxicity of Dursban, depending on its concentration. The plaintiff argues that this reasoning supports the claim that the results from the First Laboratory Test of regular RAID undermine Clorox's assertion that RAID Max Plus kills "no more than 60%" of roaches. In contrast, Clorox contends that Koehler's testimony lacks scientific validity, highlighting that hydroprene is not very volatile and spreads via sublimation, a point contradicted by SCJ’s marketing documents, scientific literature, and field tests by urban entomologists. The court finds that the 80% kill rate of regular RAID in the First Laboratory Test challenges Clorox's claim regarding RAID Max Plus. Additionally, the court notes that RAID Max Plus consists of roach baits and hydroprene, which primarily sterilizes roaches. The evidence supports that exposure to hydroprene can increase roach survival against chlorpyrifos due to increased body mass from sterilization. Clorox's own document indicates that hydroprene takes 1-6 months to start controlling roaches, suggesting that had the First Laboratory Test been extended beyond 20 days, the effects of hydroprene might have led to a higher mortality rate than the claimed 60%.

Clorox's documentation indicates that the 20-day duration of the First Laboratory Test was insufficient for hydroprene to effectively control roaches, leading to an unfair disadvantage for RAID Max Plus. This 20-day cutoff is viewed as skewing the results against RAID Max Plus, as further evidence supports the conclusion that this timeframe was prejudicial. For instance, Clorox scientist Maria Ochomogo noted that typical tests are assessed over periods from 1 day to 4 weeks, emphasizing that the laboratory tests should conclude only when all roaches expected to die have done so. The absence of a longer testing period is particularly problematic given RAID Max Plus’s absolute claim of killing “no more than 60%” of roaches, as there was insufficient evidence to support that all roaches likely to be killed had died by the 20-day mark.

Clorox argued that SCJ should have executed its own field test comparing SuperBait and RAID Max Plus. However, SCJ had commissioned a test conducted by Dr. Gold, with results reported in April 1994. SCJ did not learn of Clorox's claim regarding the glucose version of SuperBait until late September or October 1995. Even if a test site had been promptly located, logistical issues would have delayed the testing into late 1995 and early 1996, which would have conflicted with discovery deadlines. Clorox did not convincingly demonstrate that the months in question were suitable for conducting field tests, a point acknowledged by Mr. Bieman.

Additionally, Clorox contended that SCJ's earlier field tests indicated results comparable to those in Clorox's commercial claims. A test in Omaha from 1990-1991 reported a 92% mean kill rate for Maxforce, while RAID Roach Controller achieved only 42%. A smaller-scale test in Orlando in 1994 suggested SuperBait reached a 95% mean kill rate compared to 52% for RAID Max Plus with sulfluramid, though it was not a fully replicated test.

The reliability of Clorox's test results for the RAID Dursban product is substantiated by similar results from tests on Dursban baits, including those conducted by Dr. Koehler. The tests reveal that Dursban roach baits have not exceeded a 60% mean kill rate in any U.S. tests since 1991. Specific test results include: Roanoke, VA (1995) at 37.96%; Houston, TX (1993) at 64.3%; Gainesville, FL (1992) at 48.71%; and several others, all below or only marginally above 60%. Despite these results supporting the claim that Dursban's efficacy does not exceed 60%, the Court finds them insufficient to demonstrate that Clorox fails to substantiate its claim due to the unqualified nature of the Commercial's assertion. The Court gives more weight to tests indicating RAID Max Plus has exceeded a 60% kill rate.

Clorox also attempted to attribute a statement to Dr. Koehler concerning chlorpyrifos being "slow-acting," but the Court determined that Dr. Koehler neither authored nor endorsed this statement, and questioned the competence of the anonymous source. Supporting Dr. Koehler's credibility, Clorox's own witness, Dr. Silverman, confirmed that no competent entomologist would label Dursban as slow-acting.

Regarding the egg kill claim, the Commercial asserts that SuperBait kills nearly all cockroaches and their eggs. There is consensus on cockroach reproduction and the impact of insecticides like hydramethylnon and Dursban. Female cockroaches form an egg capsule about a week after mating, carrying it for three to four weeks before dropping it. If a gravid roach is killed by hydramethylnon, whether nymphs hatch depends on gestation period, temperature, and humidity.

SuperBait is acknowledged by SCJ to kill some cockroach eggs, particularly when gravid females are killed early in pregnancy. However, studies cited by Clorox indicate that if gravid roaches die after six days of pregnancy, many eggs remain viable, with 30% of oothecae hatching from females poisoned after days 7-8 and 96% after days 13-14. While these studies focused on regular Combat, which contains a lower concentration of hydramethylnon (1.65%) compared to SuperBait (2%), the court concludes that the concentrations are similar enough to suggest that SuperBait does not eliminate all cockroach eggs even if it effectively kills most cockroaches. Gravid females are more likely to consume SuperBait in the later stages of gestation when they are more active, leading to a significant number of eggs (26%-96%) potentially surviving treatment, which poses a reinfestation risk. 

To secure a preliminary injunction, SCJ must demonstrate that it will experience irreparable harm if relief is denied and must either show a likelihood of success on the merits or present serious questions regarding the merits that favor it. If SCJ shows a likelihood of success regarding any false comparative advertisement that names its product, irreparable harm will be presumed.

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), holds that individuals may be liable for false or misleading representations in commercial advertising that misrepresent goods or services. To prevail, a plaintiff must demonstrate that an advertisement is literally false or, if true, likely to mislead consumers. If an advertisement is found literally false, injunctions can be issued without considering consumer impact. In contrast, for advertisements deemed merely ambiguous, which are literally true but potentially misleading, consumer survey evidence is necessary.

In the present case, SCJ asserts that Commercial's advertising claims are literally false and unsubstantiated. The Court must assess whether the advertisement conveys a literally true or false message. The burden of proof for literal falsity varies; if an ad claims product superiority without referencing tests, the plaintiff must prove the product is equal or inferior. However, if the ad implies that tests support its superiority, the plaintiff can meet the burden by demonstrating that the tests do not substantiate the claims or that the tests were not reliable enough to support the conclusions drawn by the defendant.

A fact-finder must evaluate all relevant circumstances when assessing the validity of testing methods, which includes the state of testing technology, availability of better procedures, and the objectivity and skill of the testers. The mere existence of flaws in the tests does not automatically satisfy the plaintiff's burden; instead, the plaintiff must show that such flaws are significant enough to make the defendant's reliance on the tests unreasonable. In Procter & Gamble, the court upheld the rejection of a preliminary injunction despite recognizing imperfections in the tests, emphasizing that the plaintiff failed to prove the tests' unreliability. Similarly, in L.F. Products v. Procter & Gamble, the court ruled that merely highlighting weaknesses in the defendant's tests does not fulfill the plaintiff's burden of proof. 

In Castrol I, the Second Circuit clarified that the burden of proving literal falsity in advertising varies based on the advertisement's nature. When advertisements imply or explicitly state that tests substantiate claims of superiority, the plaintiff can meet the burden by demonstrating that those tests do not support the claims. In the current case, the advertisements assert that "testing proves Combat SuperBait kills up to 98," supported both by explicit statements and the visual presence of a scientist. Clorox acknowledges the "up to 98" claim as an establishment claim but contends that other claims made in the advertisement are general efficacy claims not referencing tests. Clorox argues that these general claims, presented in the first half of the advertisement, are distinct from the establishment claims, with a consumer featured instead of a scientist or technician.

Clorox distinguishes its establishment claims, depicted in the latter part of a commercial, from other claims, arguing that the phrase "in fact" implies a separate burden of proof for SCJ. However, this argument is rejected, as the claims are interconnected, with the "testing proves" claims serving to reinforce earlier assertions about effectiveness. The presence of a scientist in the commercial further indicates that all claims are based on testing or studies. The court emphasizes that the interpretation of the commercial must consider both audio and visual components, referencing precedents where visual elements played a crucial role in assessing truthfulness. The court highlights that understanding the advertisement requires viewing the complete message in context, including the intended audience and product use. The analysis necessitates a logical and sensible approach to determine the commercial's literal meaning, confirming that both the spoken words and visual representations must be evaluated collectively.

The Court possesses the authority to interpret advertisements using common sense and logic, weighing the spoken words, visual elements, product types, and target audience to ascertain the "necessary implication" of a commercial. Citing precedents, the Court notes instances where advertisements were found to be literally false. In this case, the advertisement in question promotes OTC roach baits, clearly conveying how SuperBait and RAID Max Plus function when used by consumers. The commercial notably features a woman in her kitchen, accompanied by a scientist's voice explaining that RAID Max Plus "only gets rid of some of your roaches," which establishes a clear expectation for its performance. The messaging throughout the advertisement directly compares the efficacy of the two products. The Court finds that SuperBait is marketed as capable of killing "just about all" roaches, while RAID Max Plus is depicted as being ineffective in eliminating more than 60% of them. The context of the claims made in the commercial is crucial for determining their validity, and the Court denies SCJ's request to enjoin the claims regarding RAID Max Plus and SuperBait, concluding that SCJ did not prove these claims to be literally false.

The Court finds that the plaintiff has not sufficiently demonstrated that the tests referenced by the defendant are unreliable regarding the establishment claims made by SCJ. The analysis will primarily focus on the Commercial's claims that "Combat SuperBait kills up to 98% of consumers' roaches" and "RAID Max Plus kills no more than 60%." If these explicit establishment claims are enjoined, the immediate dispute may be resolved pending a trial, as the current version of the Commercial would not be broadcast, altering the assessment of irreparable harm.

The Court has determined that SCJ has proven, by a preponderance of the evidence, that the Commercial's quantitative claims are unsubstantiated and literally false. Specifically, regarding the claim that "Combat SuperBait kills up to 98% of consumers' roaches," the Court concludes that Clorox's testing protocol lacks reliability in representing how the product performs in typical consumer settings. Although the Court acknowledges SuperBait's effectiveness compared to RAID Max Plus and finds Clorox's testing protocol useful for product development, it does not provide a valid measure of real-world usage.

The new testing protocol fails to account for critical variables present in consumer environments, such as bait depletion and the challenges of locating roach harborages. Clorox's documentation and witness testimonies confirm that the protocol intentionally omits these factors, which significantly influence the performance of over-the-counter roach baits. Key differences in the protocol, including the use of trained pest control operators and the application of multiple baits, further highlight discrepancies between the testing conditions and actual consumer usage. Clorox's expert acknowledged that the new protocol enhances SuperBait's performance.

Clorox's reliance on a single, small-scale laboratory test to support its field protocol results is disputed by experts, including its own scientists, who agree that such tests cannot accurately predict the effectiveness of roach baits in real home environments. Clorox's documentation acknowledges that its laboratory test is not a substitute for field studies and merely assesses the basic properties of products before field testing. Consequently, Clorox's lab and field studies do not validate the claim that SuperBait kills "up to 98% of roaches," with previous field studies showing it performed no better than RAID baits. Clorox's new protocol lacks scientific validation, as even its representative, Mr. Boase, conceded that the previous testing method was sound and widely accepted among entomologists. The Court concluded that Clorox failed to substantiate its claims regarding SuperBait’s effectiveness.

Regarding RAID Max Plus, the Court also found Clorox's claim that it kills "no more than 60% of roaches" to be unsubstantiated due to Clorox's failure to include relevant data from earlier laboratory tests. The evidence indicated that RAID Max Plus consistently showed roach reduction rates below 60%, and Clorox's lab tests conducted in 1995 did not provide reliable support for its claims. Specifically, in the First Laboratory Test, Regular RAID achieved an 80% kill rate, while RAID Max Plus reached only 60%. RAID Max Plus consists of both roach baits and an insect growth regulator, further complicating the analysis of its effectiveness. Overall, the Court determined that Clorox's testing methods were insufficient to establish the claims made in its advertisements.

Hydroprene sterilizes certain roaches, but its exposure also increases their susceptibility to chlorpyrifos. The Court finds that the 80% effectiveness achieved by Regular RAID undermines the legitimacy of a 60% effectiveness claim for RAID Max Plus. Clorox's termination of the First Laboratory Test at 20 days was deemed to artificially limit RAID Max Plus's results, as evidence indicates that hydroprene requires more time to control roaches effectively. Dr. Ochomogo noted that laboratory tests can last up to 28 days, making Clorox's early cutoff particularly questionable and indicative of an unfair disadvantage to RAID Max Plus.

Furthermore, the Second Laboratory Test showed that RAID Max Plus with Dursban killed approximately 92.67% of roaches after 21 days, contradicting Clorox's assertion that this test is irrelevant to its claim that RAID Max Plus kills "no more than 60%" of roaches. The Court deems the Second Laboratory Test pertinent, as the evidence reveals that Dursban resistance among German cockroaches is not widespread.

Regarding the Commercial's "egg kill" claim, SCJ is likely to succeed in demonstrating that this claim is unsubstantiated. The Commercial states that SuperBait kills "just about all" roaches and their eggs, but both parties generally agree on testing results. SCJ acknowledges that SuperBait does kill some roach eggs, but the extent remains contentious.

Resolution of the claim hinges on the Court's interpretation of the Commercial's message to consumers, specifically the phrase "kills just about all of them. And their eggs." This phrase implies that SuperBait effectively eliminates nearly all roaches and their eggs, presenting a significantly stronger claim than previous statements on roach bait packages, which were EPA-approved and merely indicated that roach baits kill roaches and their eggs without suggesting total eradication. Studies cited by both parties reveal that when a gravid female roach consumes a lethal dose of hydramethylnon at 7-8 days into her pregnancy, egg hatching still occurs in 26% to 30% of cases, and there is no effect on egg hatch if the poison is consumed in later pregnancy stages. An SCJ study, which Clorox relied upon, demonstrated these results under typical environmental conditions for cockroach populations. Consequently, the Commercial's "egg kill" claim is deemed unsubstantiated and false, and Clorox's argument regarding SCJ's alleged delay in challenging the claim is rejected. Additionally, Clorox's assertion that SCJ is barred from disputing the egg kill claim due to "unclean hands" fails, given the significant difference in the nature of the claims made by both parties over the years.

Furthermore, SCJ has successfully demonstrated a likelihood of irreparable harm, as established in Second Circuit case law. The court presumes irreparable harm when a false comparative advertising claim is identified, as it can diminish the competing product's value in consumers' perceptions. This presumption is robust, given that false comparisons are likely to adversely affect sales of the plaintiff's product over time.

The Court concludes that the plaintiff has demonstrated irreparable harm justifying injunctive relief, even without the presumption of such harm. SCJ has lost market share in heavily advertised markets since the airing of Clorox's Commercial, with the Court inferring that this loss is linked to the Commercial. This speculation raises doubts about SCJ's ability to recover damages at trial. The Court also notes Clorox's plans to resume airing the Commercial, indicating their confidence in its effectiveness. Consequently, the Court grants the plaintiff's motion for a preliminary injunction against the Commercial.

The Court orders the following: 
1. Clorox is enjoined from broadcasting the Commercial pending trial or until claims can be substantiated.
2. Clorox cannot assert specific claims in its advertisements, including those about the efficacy of COMBAT SuperBait and RAID Max IV Plus Egg Stoppers.
3. The injunction does not apply to claims made in different contexts that materially alter the surrounding messages.
4. The injunction will take effect upon the plaintiff posting an unlimited undertaking.
5. The Court commends the professionalism of all counsel involved.

Additionally, the Court denies Clorox's motion to reconsider a previous finding regarding Dr. Shapas's credibility, clarifying that the statement reflects the Court's assessment of his testimony's probative value relative to conflicting evidence, not a judgment on his character.

Citations to witness testimony include the witness's name and corresponding transcript page and line numbers. Deposition excerpts are cited as "witness name Dep. page and line number," while exhibits are referenced as "PX" or "DX." SCJ's tests indicate that Superbait performs comparably to Regular COMBAT. Neither Dr. Frishman nor Mr. Boase were recognized as experts in consumer behavior, and Mr. Boase denied knowledge of U.S. consumer experiences with cockroach treatments. Labels for RAID Max Plus and COMBAT Superbait do not suggest using sticky traps for cockroach detection. The designation "O.R.F." in PX 36 refers to Regular RAID, which shares a toxic formulation with RAID Max Plus but lacks the sterilizer component hydroprene. Dr. Koehler's expert report demonstrated that RAID Max Plus killed significantly more cockroaches than Superbait in a laboratory test, with statistically significant results at the 95% confidence level. Mr. Bieman's testimony regarding the brevity of his inspections was viewed skeptically, and the Court found discrepancies between his deposition and hearing accounts unconvincing. Mr. Boase mischaracterized Dr. Brenner's testimony, which was credible and indicated he was unaware his opinions were being used to support an advertising claim. The relevance of product label instructions in testing protocols was emphasized, noting that using more than three grams of bait does not breach label guidelines. The Court found Dr. Koehler's testimony more persuasive than Dr. Shapas’s, who inadequately supported the claim that consumers can accurately assess bait depletion. Mr. Bieman concurred with Dr. Koehler on this point.

Factors influencing the performance of RAID Max Plus were not effective in certain Miami and Ocala apartments due to the presence of resistant cockroaches. Dr. Koehler indicated that proximity of the product to cockroach harborages did not enhance efficacy in these cases. The use of multiple baiting to prevent bait depletion significantly affects product performance variance, as noted by Bieman. Consumer use of professional pest control (PCO) services for cockroach issues was low, with only 21.3% of households reporting any use in 1995, making it unlikely for sustained use of an insecticide to develop resistance. Professor Cochran's findings on resistance were supported by his prior writings, and testimony from Dr. Frishman highlighted that Dursban is mainly used as a spray by PCOs, with repellent properties in bait form. The Court found that widespread use of Dursban suggests that resistance is not a common issue in most housing types. RAID Max Plus with sulfluramid showed similar statistical performance to Superbait, while the plaintiff acknowledged that sulfluramid testing results were irrelevant for assessing RAID Max Plus with Dursban. Clorox's reliance on a specific test was questioned, as it overlooked that Superbait performed comparably or worse. Additionally, the SCJ protocol's allowance for bait placement discretion aligns with label directions. The Court adopted any findings that could be construed from its legal conclusions. SCJ did not argue for a favorable outcome based on the preliminary injunction standard regarding serious questions of merit or hardship balance.