Question: S.C. JOHNSON & SON v. CLOROX CO., 2000 U.S. DIST. LEXIS 3621 (S.D.N.Y. JAN. 7, 2000); S.C. JOHNSON & SON v. CLOROX CO., 2000 U.S. DIST. LEXIS 4977 (S.D. N.Y. APRIL 6, 2000)

FACTS Clorox Co. ran 15- and 30-second television advertisements showing a water-filled Slide-Loc food storage bag manufactured by its competitor, S.C. Johnson & Sons, Inc., turned upside-down. The advertisements showed water leaking out of the bag at a rapid rate, with air bubbles forming in the bag. As stated by the trial court, "[T]he overall impression, that is, the overall depiction in the commercial itself is of a rapid and substantial leakage and flow of water out of the Slide-Loc bag. This is rendered even more graphic because there is a goldfish depicted in the bag which is shown to be in jeopardy because the water is running out at such a rate." S.C. Johnson & Co, filed suit, claiming that the advertisement was literally false and requesting an injunction prohibiting further airing of the advertisements. DECISION The court found that when the Slide-Loc bags and Clorox's own Glad bags were subjected to the same quality control tests, two-thirds of both types of the bags showed some leakage. However, the "‘great majority" of the leaks were small and very slow and occurred only when the bags were held upside-down.

Because normal consumers do not use the bags to hold water, particularly upside-down, and because the commercial greatly exaggerated the leakage of Slide-Loc bags, the court found that aspect of the advertisements to be literally false. It enjoined Clorox Co. from running the advertisements. Three months later, the parties were back before the same court. Clorox Co. had revised its advertisement and was airing a new 15-second commercial as well as running a print ad in a popular women's magazine. The new commercial, like the original one, displayed a bag filled with water, containing a goldfish, and held upsidedown. It did not, however, display a rate of leakage as fast as that shown in the original ad. The print ad had a single image of a Slide-Loc bag with a large drop of water about to fall away and the goldfish in danger of suffocating. The court again found that both advertisements were literally false because they did not indicate that leakage occurs in only a certain percentage of such bags rather than all of them, and because nothing indicated the degree of risk of such leakage. Thus, the court issued an injunction against both the new commercial and the print advertisement.