Epistemology of the diaper

Procter & Gamble Co. v. Kimberly-Clark Corp., -- F. Supp. 2d --, 2008 WL 3103758 (E.D. Wis.)

Kimberly-Clark makes Huggies Natural Fit diapers, with sides contoured towards the center. Huggies’ global brand director testified that consumers would view this feature positively, allowing Huggies to advertise a better fit and greater comfort. Huggies tested size 4 diapers, under the theory that size 4 was the largest seller and spanned a large number of baby weight ranges. Single-size tests are supposedly common in the diaper industry, and size 4-wearing babies generally engage in the standard baby activities of crawling, lying down, etc. The study allegedly supported the “natural fit” claim, though not a claim of less bulk.

Huggies used ads emphasizing natural fit across multiple media. A big part of the campaign involves claims that Huggies are designed for “babies of the human variety” while the on-screen image suggests that other diapers are designed to fit inanimate bricks. Huggies’ own study concluded that the ad was very persuasive.

P&G was less impressed and filed suit, arguing that the “fits more naturally” claim is false.

The court found that “natural fit” and “fits more naturally” were puffery, not factual claims. The court identified two kinds of puffery. The first, exaggeration, is a general superiority claim—no one expects that consumers will take claims for “lowest” prices or “best” products seriously. Here, the puffery is different. Instead of exaggerating product quality, the puffing claim is immeasurable. Huggies’ claims about its diapers are “so vague and subjective that they are neither provable nor disprovable.”

First, claims about natural fit are vague “by their very nature.” Neither of the parties were able to identify “a fixed set of criteria” for what “fit more naturally” might mean. There are better and worse fits in general, but the court asked: “which garment fits a woman more “naturally”-a tailored English business suit, a Japanese kimono, or an Indian sari?” Indeed, testimony suggested that consumers’ standards for measuring fit vary widely because fit is subjective, and even depends on the diapers’ appearance.

Despite extensive testing, P&G still doesn’t know how consumers decide that a given product “fits naturally.” (Would this matter if the issue were “tastes better”? Overall taste test claims are considered verifiable, even though individual tastes are subjective and difficult to explain.) In fact, P&G’s designers were once convinced, using quantifiable measures, that a particular diaper would be an excellent fit, but consumers disagreed and “won.”

Given that the benchmark concept is incapable of concrete definition, “fits more naturally” and “natural fit” could neither be proved nor disproved, and thus they could not be falsified. In fact, even if we could all agree on what it meant for a diaper to “fit more naturally,” our individual conclusions on which diaper did so “would be based on purely subjective judgments.” Such “opinion puffery” can’t be proved.

At the end of the day, “the only way of measuring natural fit is through consumer testing.” P&G’s expert noted that different consumer populations use different diaper brands and have different fit goals. So even if P&G internally considers Pampers Cruisers its best-fitting brand, consumers might not agree.

P&G argued, reasonably enough in my opinion, that because consumer testing can substantiate a diaper fit claim, such claims are verifiable through consumer tests. But the court concluded that even if consumer testing provides companies with useful market information, that doesn’t make it a legitimate way of assessing truth or falsity for Lanham Act purposes. The court was guided by the Pizza Hut decision, in which the Fifth Circuit rejected a falsity claim for “Better Ingredients. Better Pizza.” “Better Pizza” was typical puffery, and in context so was “Better Ingredients.” (This is something of a simplification: the court of appeals held that “Better Ingredients” might, in context of slightly more specific claims about quality sauce or dough, have been actionable, except that there was no survey evidence of materiality. Given the apparent evidence of materiality here, in the context of ads showing other diapers fitting bricks better than babies, I would think the analogy would support potential liability.)

The court held that, just as it’s impossible to prove which pizza is better, it’s impossible to demonstrate “conclusively” whether one diaper “fits more naturally.” “[A]n assertion whose truth depends solely on consumer opinion is an inactionable one.” Thus, taste tests showing that Pizza Hut was preferred by 75% of consumers over Papa John’s still wouldn’t have disproved the “Better Pizza” claim. (This is to say that the court is unwilling to believe that consumers perceive an implied representation of a factual basis for a claim as general as “Better.” Depending on the claim, however, consumers may well perceive an implied representation of a factual basis. Imagine, for example, if the diaper claim was “gentler”—which says something to me, as a frequent diaper consumer, about the effects on a baby’s skin—or, perhaps for another product, “safer.”)

Thus, “[w]henever subjective preference is the arbiter of a claim--whether of pizza or natural fitting diapers--resort to consumer studies is of limited value in the Lanham Act context and only underscores the inherent difficulty in disproving such claims.” In fact, the court held, the study results presented to it demonstrated that consumers couldn’t agree on which diapers fit more naturally. For several sizes, 51% of consumers found that Pampers fit more naturally, while 45% preferred Huggies and 4% had no preference. The court called this a “coin toss” based on individual preference, not objective truth. (Hmm. It seems to me that the objective truth is that you are just about as likely to prefer the fit of Huggies as the fit of Pampers, which is probably good news for competition. The court is shifting back and forth between individual preference—subjective—and population results—not subjective. It may get to the right result, but on this evidence it doesn’t seem right to accuse Pampers of being designed to fit bricks.)

Finally, the court pointed out that the studies weren’t just of subjective impressions. They were the subjective impressions of the consumer, not the actual wearer, who ought to be the judge of “fit.” The court was struck by the fact that the “aesthetics of the diaper” play a role in “mothers’” [sic] perception of natural fit. (I’m pretty sure that aesthetics play a significant role in everyone’s perception of fit, even with their own clothes.)

Even if the “fit more naturally” claim were more than puffery, the court concluded that P&G had not disproved it. First, the court pointed out that (in the absence of some signal in the ad itself that there is substantiation) the Lanham Act doesn’t require testing to support a claim’s truth. Thus, challenging the Huggies study does not in itself show falsity: when test evidence isn’t incorporated into an ad, a Lanham Act plaintiff can’t show falsity merely by attacking “any tests that might happen to exist.” It is the difference between “that claim is false” (actionable) and “you have no proof” (not). (Note that the result may be different in courts, like the Third Circuit, that hold that consumers reasonably expect a minimum level of substantiation from factual claims—that is, consumers don’t assume that advertisers pick their claims by throwing darts at a board marked with possibilities. Even such courts, however, are likely to attempt to cabin this substantiation doctrine to cases in which the claims are reasonably specific, so I can’t imagine this rule changing the result here.)

P&G argued, however, that its criticisms and its own tests could actually show falsity. The court disagreed, persuaded by Huggies’ expert that its test was generally reliable, despite minor flaws (the possibility of a “halo effect” leading to positive answers on multiple attributes given that the survey asked 26 questions; the limitation of the test to only size 4 diapers). Huggies’ expert had an interesting mirror-image criticism of P&G’s survey, which only asked about “fit.” He testified that the results indicated “dumping,” meaning that consumers answered the “fit” question even though a “fit attribute” wasn’t driving their opinion, because it was the only way to express a preference for one diaper over another. The court found this “persuasive in some limited sense,” but not enough to make the survey unreliable—or to skew the results.

In sum, the court found that consumer preference as to natural fit was a “close call.” Both sides had decent but not perfect surveys. The court concluded that the experts’ criticisms, in particular the focus on the “halo effect,” pointed in the direction of finding all the surveys unreliable: “[I]f consumers are so fickle that their own survey responses are swayed by such phenomena as dumping and halo effect, how can a Lanham Act falsity claim ever be premised on consumer preference surveys?” (Well, that statement’s never going to be applied out of the context of a vague product claim! I had thought it was well understood that surveys can readily be used to manipulate even apparently objective reactions.)

In the end, P&G’s claim failed because of an “epistemological problem”: how one can “know,” much less “prove,” whether certain diapers fit more naturally than others.

The court also found that there was no evidence of irreparable harm. P&G moved for preliminary relief 9 months after filing suit, and Huggies submitted credible testimony that ads like the “Brick Baby” ad have a limited lifespan. Moreover, P&G’s own brand manager testified that damages are calculable now. This is a good reminder that a large company needs to act fast on false advertising: the larger you are, the more closely you ought to be monitoring the market unless you wish to be charged with relief-defeating delay, and the more evidence you'll have establishing your own damages, making irreparable harm harder to show.

It’s important to be clear about the meaning of this result, and others: When a court determines that a claim is puffery, then even evidence of materiality—effects on consumer purchasing decisions—will be irrelevant. As others have, I find this somewhat paradoxical given that the core stated justification for the puffery doctrine is that consumers aren’t influenced by mere puffing. See Ivan L. Preston, Puffery And Other "Loophole" Claims: How The Law's "Don't Ask, Don't Tell" Policy Condones Fraudulent Falsity In Advertising, 18 J.L. & Com. 49 (1998).

However, the doctrine does fit into the American approach to advertising regulation: you can fool people into making decisions based on irrelevant criteria as long as you don’t actually deceive them. What’s the difference between being deceived and being fooled? It’s in the specifics of the claim. Not a very stable division. But the alternative, which is more European, would be to say that you can only influence consumer decisions based on (a) brand value or (b) objectively verifiable claims, and that’s not a particularly easy row to hoe either.