Federal Court Decisions in the Advertising Law, Marketing Law and Commercial Speech Areas
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Video Commercial - Federal Court Decision - Full Text
S.C. Johnson & Son v. The Clorox Co.
S.C. JOHNSON & SON, Plaintiff, - against - THE CLOROX CO., Defendant,
99 Civ. 11079 (TPG), UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, 2000 U.S. Dist. LEXIS 4977, April 6, 2000,
Decided April 19, 2000, Filed
Judge: THOMAS P. GRIESA, U.S.D.J.
[Opinion]: THOMAS P. GRIESA
THE COURT: Let me dictate findings and conclusions.
The record shows that there was a substantial trial regarding two earlier versions of this commercial, a video commercial, and on January 7 of this year I dictated a decision from the bench ruling that the plaintiff was entitled to a permanent injunction against both commercials. The hearing started out as a hearing on a motion for a preliminary injunction but it was then stipulated that the hearing should be treated as a trial on the merits on the issue of whether there should be final injunctive relief.
Now, following that occasion the video commercial has been revised and a new television commercial has been revised and a new 15-second commercial is being aired. In addition, there is now a print ad and I have seen an example of that in an issue of Women's Day for April 1 of this year, and the request is to obtain injunctive relief against both the new television commercial and the print ad.
The court is in a position, in my view, to decide the case based on the existing evidence without further evidence. Very extensive evidence was developed at the earlier trial regarding the characteristics of the slide-lock bag which is the object of the advertisement in the sense of attempting to show that the slide-lock bag is a leaking product. Considerable evidence was introduced about the degree to which the slide-lock bag had leakage of water under certain conditions, and of other more viscous liquids under certain conditions.
I will not attempt to repeat what was said in the earlier decision, although a great deal of it applies to the issue now presented to the court. This is true despite the fact that there is some change in the television commercial, and of course there is a new print commercial which was not dealt with at all at the time of the earlier trial. There was no issue about a print commercial.
Focusing now on the new television commercial, in my view it has the essential problems of the earlier 15-second commercial. Again, there is the use of water despite the fact that the evidence shows that a consumer would almost never store water in such a bag. The evidence would indicate that no consumer would surely ever store water in such a bag upside down and the leaking that is shown is of water in a bag held upside down. No such usage occurs.
Now, in my earlier decision I stated that in my view it was not wrong in and of itself for Clorox in a television demonstration to use water. But I pointed out that great care needed to be exercised for accuracy in connection with such a demonstration because the commercial would be shown to people who would only use such a bag for things other than water and would surely not use such a bag for water with the bag turned upside down.
Therefore, what I remarked was that if water was to be used there should be the greatest possible care to have the portrayal accurate and truthful.
The new ad on television, like the former ad, portrays, as I say, water in a slide-lock bag held upside down. It portrays a goldfish inside the bag in the water. Now, it does not literally portray a rate of leakage which was portrayed in the earlier ad and which was the subject of certain of my findings in the earlier decision. In the earlier commercial the slide-lock bag was shown over enough time at a single image or during a single image to show a leakage rate of about one drop per second. I found that that was an untrue portrayal considering the evidence and I explained that and will not repeat that.
The new ad does not show an image of the slide-lock bag for a long enough time to show more than one drop and therefore does not show the image for a long enough time to show any rate whatsoever. There are two images shown of the slide-lock bag upside down with water coming out, two separate images. In each image a large drop immediately forms and the water drop falls. That is shown in the first image and then the commercial switches to some other subject and when the next image comes of the slide-lock bag there again is a large drop immediately forming and falling away.
One of the findings I made in the earlier decision was as follows: The problem with the commercial is that there is no depiction in the visual images to indicate anything else other than the fact that the type of fairly rapid and substantial leakage shown in the commercial is simply characteristic of that kind of bag. There is nothing to indicate that that kind of leakage occurs in only a very small percentage of the bags and I go on to talk about the evidence which showed that. Although a test showed that some leakage occurred in about two-thirds of the slide-lock bags tested, the great majority of those leaks were very small and at a very slow rate.
Now, essentially the same problem that I commented upon in the earlier decision exists with this commercial, with the present commercial. There is nothing to indicate that anything goes on with the slide-lock bags except the leaking of large drops as shown in the only two depictions that are relevant. There is nothing indicated about slow rate or rapid rate. There is nothing shown except one image and that is an image of a big drop of water falling out of the bag.
There is nothing to indicate that this kind of leakage occurs in only some particular percentage of bags, and there is nothing to indicate the degree of risk of such leakage. There is only one image, and that is of a big drop falling out.
Now, Clorox contends that what is really shown is that the leakage occurs at a rather slow rate, perhaps about once every seven or eight seconds, and it bases this argument on the fact that if you take the elapsed time between the leak or the drop in the first image and the drop in the second image, this amount of time elapses. I am not sure that we literally had a stopwatch showing the time, but that is the estimate and I will accept it.
This is simply not what is portrayed. There is nothing visually or in words to indicate that what is being depicted is some kind of a continuum of the condition of the bag from one image to the other. All that is depicted is two separate images, each of which shows the same thing. There is no doubt in my mind about what is shown and what is omitted. What is shown is the images, and what is omitted is any indication about the actual rates and degree and amount of leakage that the detailed evidence at the trial showed.
The same goldfish is present in the current television ad as was present in the first television ad. What is portrayed is a goldfish in danger of suffocating in air because of the outflow of water from the bag.
This, combined with what I have already described, is decidedly contrary to what was portrayed in the actual evidence about the bags at the first trial, and all in all the television commercial in my view is literally false.
I also reiterate what I said in the earlier decision about the necessary implication, and the same evidence which justified my remarks at that time about the necessary implication justifies a renewed finding that a portrayal of leaking water which is false will inevitably and necessarily mislead viewers about what is likely to happen with the products, including liquid products, which they are actually going to store in the bags and with respect to the manner in which they are going to store such products.
The print ad is, if anything, worse. It has a single image of a Slide-Loc bag with a large drop about to fall away and a goldfish in danger of suffocating because the water is as portrayed disappearing from the bag. This advertisement is literally false, and the necessary implications are misleading.
I would like to end by saying certainly Clorox has a right to portray in a truthful and fair way the differences between its product and the Slide-Loc product. There are differences. But what has been done here is to come back with a television ad which shows some modification, but which more importantly conveys essentially the same message as the earlier ad.
If Clorox wants to pursue this subject, there should be an attempt to make a clean break with false and misleading depictions and portray something that indicates the degree of risk of leakage without portraying the leakage as simply an ever-present characteristic of the Slide-Loc bags.
That concludes my findings.
Dated: New York, New York
April 6, 2000
THOMAS P. GRIESA