In a recent National Advertising Division (NAD) proceeding, Van Ness Plastic Molding Company challenged claims made by Doskocil Manufacturing Company (dba Petmate) that its cat litter pans provide “antimicrobial protection” and “inhibit bacteria growth.” (Case #6181, 4/27/2018.) According to Van Ness, the claims were false and misleading as well as non-compliant with Environmental Protection Agency regulations. Specifically, Van Ness alleged that the claims falsely implied not only that Petmate’s litter pans were protected from bacteria, but also that the pans provided a public health benefit by protecting consumers and their pets from bacteria.
Petmate responded that its antimicrobial protection claims were substantiated. In particular, it asserted that its pans were treated with Microban®—an EPA registered pesticide tested and proven to have antimicrobial properties. Moreover, it submitted a report prepared by Microban Products Company (MPC) describing testing done on Petmate litter pans. According to MPC’s report, it tested five pans—using a standard developed by the American Association of Textile Chemists and Colorists called the AATCC90—and “[a]ll samples . . . exhibited activity against tested organisms.”
NAD, however, concluded that Petmate’s antimicrobial protection claims were unsubstantiated and should be discontinued. More specifically, it concluded that the mere fact that Petmate’s litter pans contained some quantity of the Microban pesticide did not demonstrate that the pans had “the same antimicrobial capabilities or [would] provide the same antimicrobial benefits as [Microban] itself.” Further, pointing out that AATCC90 was designed to test textile materials and not plastics, NAD questioned the appropriateness of using this test on Petmate’s plastic pans. Thus, NAD concluded that Petmate had failed to provide “competent and reliable scientific evidence” showing that the AATCC90 test was “generally accepted by experts in the relevant area as the appropriate procedure,” as required under NAD and FTC precedent.
NAD also took issue with other aspects of MPC’s testing report. First, NAD noted that MPC, rather than a third party, had conducted the testing. NAD advised that while in-house testing may be accepted when “adequate controls and safeguards are implemented to avoid bias,” independent testing is preferred. And as MPC noted, MPC had presented no evidence to show that its in-house testing had been done in a way that avoided bias. Second, NAD advised that “to better reflect the performance of product[s] that consumers would find,” the testing should have been conducted on marketplace samples instead of Petmate’s inventory. Third, NAD questioned the reliability of MPC’s results given that no control samples were used. Moreover, NAD concluded that even if it accepted MPC’s report at face value, Petmate provided no evidence showing consumer relevance—“that consumers would perceive a difference due to the inclusion of the antimicrobial agent.”
NAD’s decision that Petmate’s claims lacked substantiation mooted the issue of whether the claims complied with EPA regulations. That said, NAD noted that the “EPA and FTC share concerns that consumers can take away misleading messages when it comes to claims for antimicrobial treated products,” and it provided some guidance regarding what Petmate had to do to avoid misleading consumers and comply with EPA regulations. Specifically, it examined Petmate’s latest revised label and noted that it included the claim “with built-in antimicrobial product protection*,” with the asterisk leading to a disclaimer—at the bottom of the label and in much smaller font—stating that, “This product does not protect users or others against disease-causing bacteria.” NAD observed that this was insufficient and that under EPA guidance, the disclaimer should have been “in the same size font of, and in close proximity to, the claim which it qualifie[d].”
Finally, Van Ness had also challenged Petmate’s use of the Arm & Hammer (A&H) logo and trade dress on its labels. Van Ness’s argument was that by using A&H’s trade dress alongside its antimicrobial claims, Petmate was misleading consumers into thinking that its pans provided “odor inhibiting and other health benefits” that were typically associated with A&H’s baking soda and other products. As Van Ness noted, though, Petmate’s pans did not contain any products manufactured by A&H. NAD, however, concluded that these uses were not misleading, and instead “conveyed [the] simple brand message”—that the products were “simply Petmate’s A&H branded cat litter pans.”
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Finnegan is deeply saddened by the death of our colleague Donald R. Dunner, who passed away on October 16, 2019, after a life of dedication and inspiration to many in IP law. Don was in a category all his own with his talent and distinct knowledge of IP law. His direct approach and enthusiasm for work and life touched everyone who worked with him, and we will miss him dearly.