Hold your nose: diaper pail claims don't merit preliminary injunction

Munchkin, Inc. v. Playtex Products, LLC, 2011 WL 2174383 (C.D. Cal.)

Playtex makes the Diaper Genie while Munchkin makes the Arm & Hammer Diaper Pail. Munchkin sued and Playtex counterclaimed. Munchkin sought a declaratory judgment that it wasn’t engaged in false advertising when it made the claim that the Diaper Pail was "The NEW # 1 in Odor Control. Proven Better at Odor Control than Diaper Genie II & Diaper Genie II Elite in a laboratory test." It also asserted that Playtex made false superiority claims such as "Proven # 1 in Odor Control," "# 1 Brand. For Ultimate Odor Control," and "Voted One of the Best Baby Products 11 times by readers of American Baby," the last allegedly false because the award is annual and the Diaper Genie II Elite wasn’t introduced until 2008.

Playtex counterclaimed about "Proven Better at Odor Control than Diaper Genie II & Diaper Genie II Elite in a laboratory test," as well as "Moms prefer Munchkin 2 to 1 over Diaper Genie II in an independent, national, in-home study of 100 moms."

To win its counterclaim, Playtex had to show more than methodological weaknesses in Munchkin’s test. It had to show that the test was not sufficiently reliable to permit one to conclude with reasonable certainty that it established the claim made. Criticism of Munchkin’s methodology was insufficient; Playtex needed something more, showing Munchkin’s data was irrelevant or false, to get a preliminary injunction. Playtex didn’t do this.

Playtex made two arguments: (1) Munchkin’s test didn’t support its superiority claim, and (2) the tests weren’t reliable. As to the first, Playtex argued that Munchkin’s test didn’t establish the “#1 in odor control” claim because Munchkin didn’t actually test for diaper or other odor and didn’t test in accordance with manufacturer’s instructions or with reference to real world use conditions.

Munchkin used two tests: a sensory test with human sniffers and an analytical test that measured the concentration of parts per million of ammonia in the air. Munchkin relied on the analytical test, perhaps because the sensory test produced no results. Playtex argued that the analytical test wasn’t designed to test odor superiority and that it wrongly tested only one compound, and that Munchkin made no effort to correlate its data to odor that human users would likely perceive. But Munchkin responded that its claim was about odor control, not on whether humans would perceive odor more or less over time. The court was not persuaded that Munchkin needed to use human/sensory testing, especially since analytical testing can help determine what humans are being exposed to. Analytic testing is quantifiable and avoids the “inherent subjectivity” of human sniffers. Thus, Playtex failed to meet its burden of showing literal falsity based on the use of analytic testing only.

But what about whether the smell levels would actually matter to people? The literature already established that people can smell ammonia at levels as low as 2-3 ppm. Thus, an analytic test was sufficient to measure odor reduction effectiveness.

Ammonia as the only odorant: real diaper odor has a host of other malodorants. But Munchkin’s declarant said that ammonia was an appropriate proxy because it’s generated quickly by a soiled diaper and has a foul odor. It’s also common in the field to test a single odorant. Despite weaknesses in these arguments, Playtex didn’t affirmatively demonstrate that ammonia-only data was irrelevant. And there was no industry-wide standard for diaper odor formulation; every company has to figure out its own test.

Playtex also argued literal falsity because the tests were not in accordance with the manufacturer’s instructions as the claim expressly stated. The tests involved ammonia solution in a beaker, put into the pail with the lid closed for 30 minutes. The pail was then opened for ten minutes. Then an ammonia-soaked diaper was added and the pail was left open for another ten minutes, then closed for 30, then the bag and diaper were removed. Ammonia levels were measured throughout. The Munchkin outperformed the Playtex products at each step.

Playtex argued that leaving pails open for 10/30 minute intervals was contrary to the manufacturer’s instructions, which specify immediate lid closure. Indeed, on the Diaper Genie II Elite, the lid has to be propped open or it will close automatically, and its odor control feature activates when the lid closes.

Munchkin argued that its test was consistent with actual use and that any deviations from manufacturers’ instructions were necessary for scientific testing (that apparently didn’t measure anything that could take place in the real world, though). Munchkin’s declarants agreed that diaper pails aren’t continuously closed in use and are instead opened and closed repeatedly, so an open-pail reading is a valid measurement.

My recollection of diaper pails is that, though you do of course open and close them, they are open for as short a period as possible. Why wouldn’t you measure the ammonia immediately upon opening, which is the closest to actual experience? Munchkin’s answer was that the ammonia analyzer needed time to “settle out” after a change in condition. But does diaper odor “settle out” in this way in the real world? Shouldn’t you open the pail, then close it, then wait ten minutes for the odor to settle out to approximate the odor that would actually be around in practice? The deposition testimony quoted reinforces my sense that Playtex had the better of this argument, with Munchkin’s declarant coming out and saying that if you leave the pail open then the concentration of ammonia keeps increasing (and then stabilizes for purposes of measurement, but increases seems to be an important point)—which I presume has something to do with Brownian motion.

However, the court found that Playtex didn’t meet its significant burden of proof to show Munchkin’s test unreliable. In each of the five steps, Munchkin’s product released less ammonia, and so the closed pail measurements also showed superiority. Also, open pails were necessary for a more accurate reading from the analyzer. (This seems to me to mistake accuracy for precision. The reading might be more reproducible, but by deviating from real conditions, it seems less accurate.)

Playtex primarily relied on Church & Dwight Co., Inc. v. S.C. Johnson & Son, Inc., 873 F.Supp. 893 (D.N.J.1994), a carpet deodorizer case, to argue that Munchkin was required to show that its tests resembled real world conditions. That case found a “five times better than baking soda” claim literally false when the claim was derived from lab tests, not actual human experience, and would have no practical equivalent in the real world. The court here found that the key in S.C. Johnson was defendant’s failure to disclose that its results were derived from lab testing, not actual use. But Munchkin clearly indicated in its claim that it was relying on a lab test.

But isn’t the necessary implication that the lab test had practical implications in the real world? Well, the court found that Playtex hadn’t shown that Munchkin’s test had no practical equivalent in the real world. In S.C. Johnson, you’d have needed to use 37 pounds of the product instead of a good real-world shake to get the lab results, but the differences between the ammonia tests and the real world here were far less significant.

The court did find that Playtex showed materiality, since odor control was the most important characteristic of the product.