Does "Dead Weeds in 1 Day" mean the entire weed will die, or just the visible part?

Scotts Co. v. Procter & Gamble Co., 2026 WL 482655, No. 2:24-cv-4199 (S.D. Ohio Feb. 20, 2026)

Previously, the court rejected Scotts’ request for a preliminary injunction of the trade dress of P&G’s Spruce brand of weed killer products, finding that it was not likely to be confused with Scotts’ Miracle-Gro. Scotts also makes Roundup and Ortho, relevant to the false advertising claims addressed here. The court dismissed one part of the claim but allowed the rest to survive.

Scotts challenged four different P&G statements (combined with certain visuals).

Dead weeds in 1 day

First, “Dead Weeds in 1 Day” and its accompanying visuals.  Scotts alleged that this was “literally false” because Spruce weed killer will not kill the entire weed within one day. Spruce is a “minimum risk product” as defined by the Environmental Protection Agency, and “[t]o date, all minimum risk products work by making contact only with the exposed portions of the plant and none directly affects the roots of the plant.” Thus, while “[w]ith regular application at certain dosages over time, a minimum risk product may eventually exhaust the roots’ storage of nutrients by repeatedly removing its leaves,” it will not kill the entire weed within one day.

Statement 2 uses the same visuals and has the same alleged problem: “Spruce works differently by dehydrating the weed down to the roots for dead weeds in just 1 day.”

visible results in 1 hour

Statement 3 promises “FAST Visible Results Within 1 Hour” or “visible results in 1 hour,” accompanied by before and after visual depictions. Scotts alleged that these “after-application images do not accurately portray typical results” of Spruce weed killer’s effects after only one hour.

Spruce works differently image

Statement 4 is titled “Spruce Works DIFFERENTLY.” It also says “WEEDS DEHYDRATE TO DEATH,” “1 HR,” and that “Without water, weeds dehydrate and die fast, showing visible results in 1 hour,” and was allegedly misleading for the same reasons.

P&G argued that Rule 9(b) should apply because false advertising “sounds in fraud.” Although this argument routinely works in consumer protection cases (because courts don’t like them), it fails here, as it sometimes does in Lanham Act false advertising cases. (Never in regular trademark cases, as far as I can recall.)

As P&G conceded, “[n]o Circuit has yet ruled on whether Rule 9(b)’s pleading standard generally applies to Lanham Act false advertising claims.” P&G’s theory of the law is that “if an element of any claim ‘requires an allegation of duplicity,’ it ‘implicates Rule 9(b)’s purpose’ and, therefore, Rule 9(b)’s heightened pleading standard applies.” And, because Scotts alleged intentional deception, the claim sounded in fraud.

But, as the court noted, “Lanham Act false advertising claims do not have a scienter element, so it is hard to see how they would require an allegation of duplicity.” The Sixth Circuit has applied the Rule 9(b) pleading requirements to some causes of action missing an intent requirement on par with the intent required for fraud—for example, to innocent misrepresentation. “But typically, courts do so when a ‘unified course of fraudulent content’ forms the basis of those non-fraud claims—especially if pleaded alongside fraud.” This is designed to prevent evasion of Rule 9(b).

Here, though, Scotts’ false advertising claim was based on the allegedly false and misleading nature of the statements themselves, not on the allegation that P&G is “willfully ... intending to deceive consumers.” “That is, if the statements are false, liability could attach even absent intent. So there is no indication that Scotts’ actual claim is fraud, with the false advertising claim only pled to circumvent Rule 9(b)’s strictures.”

More generally, “Lanham Act false advertising claims, while also based on ‘false’ statements, seem different in kind than traditional fraud claims.” Rule 9(b) is designed to ensure defendants have sufficient notice to respond. “But allegedly false or misleading advertisements typically run over an extended period of time, making it ‘unreasonable and contrary to the Sixth Circuit’s liberal construction of Rule 9(b) to require Plaintiff[s] to identify the exact day, hour or place of every advertisement’ that caused them harm.” Scotts clearly identified the statements it challenged, providing P&G all of the notice needed for it to respond. (It would also be possible to decide that this satisfied 9(b), as some cases have done.)

In addition, Lanham Act claims differ because Scotts was not alleging that it itself was defrauded, but that its customers are. “[G]iven that Scotts itself was not the defrauded entity, some of the who, what, when, where, and why questions that form the typical grist for Rule 9(b) may turn on information that Scotts itself does not have—information that instead rests only with the allegedly defrauded customers.”

Turning to the merits, Scotts plausibly alleged that statements 2-4 were false or misleading, but not the literal falsity of statement 1.

Recall that, on Scotts’ theory, Spruce weed killer does not directly affect the weed’s roots, so it does not (indeed cannot) kill the entire weed within one day (as the roots are still alive). P&G pointed out that the visuals do not depict the subterranean portion of the plant, and argued that “a ‘dead weed’ refers to a plant evidencing visible necrosis as featured in the accompanying image.” A statement “cannot be literally false if it reasonably conveys multiple meanings,” and that was the case here. “While consumers might plausibly take ‘dead weed’ to mean that the entire plant is dead, and will not grow back, consumers could also plausibly consider a weed evidencing visible necrosis (i.e., the visible green part is now brown and dead) to be a ‘dead weed.’”

Scotts did plausibly plead that Statement 1 was misleading. Statement 2 could also cross the line to literal falsity by claiming to dehydrate the weed “down to the roots for dead weeds in just 1 day.”

This is not ambiguous. The obvious meaning of this statement is that Spruce works—apparently in contrast to other weed killers—by dehydrating the whole plant, including the roots. It is not plausible that reasonable consumers would take the phrase “down to the roots” to mean just the above-ground portion of the weed. “Down to the [whatever thing]” conveys finality and the exhaustion of that thing. If coffee is good “down to the last drop,” one expects that the last drop will be good, as well. And if an event is planned “down to the last detail,” that means that the last detail is accounted for, too. True, sometimes phrases using this structure can mean something like “everything is gone except the thing.” For example, if a house is burned “down to the ground,” that does not suggest that the ground itself has burned. But even then, “down to [something]” means that the entirety of the thing is exhausted. The house burning “down to the ground” means that everything that can burn has; no part remains. Either way, weeds dehydrated “down to the roots” conveys that the roots, too, are dehydrated. Accordingly, there are not multiple reasonable interpretations of Statement 2 and Scotts has sufficiently alleged that it is literally false and misleading.

Statements 3 & 4 were also both plausibly false and misleading. “Scotts is alleging that weeds treated with Spruce weed killer will not have the visible results in one hour that the images depict. Or in other words, if you spray weeds with Spruce and wait one hour, the weeds do not in fact look like the pictures. Whether these images are actually inaccurate, and if the images and statements together are actually misleading consumers, are issues the Court will address later.”