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May 9, 1996

S.C. JOHNSON & SON, INC., Plaintiff, against THE CLOROX COMPANY, Defendant.

The opinion of the court was delivered by: SEYBERT


 SEYBERT, District Judge:

 This is an action for false advertising, pursuant to § 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), in which S.C. Johnson & Son, Inc. ( "SCJ") seeks a preliminary injunction restraining The Clorox Company ( "Clorox") from making certain challenged advertising claims. These claims, which concern the effectiveness of two competing household roach control products -- SCJ's RAID Max IV Plus Egg Stoppers(R) ( "RAID Max Plus") and Clorox's COMBAT SuperBait(R) roach baits ( "SuperBait") -- were presented last summer in a 30-second television commercial entitled "Weapon" (the "Commercial") that Clorox intends to resume broadcasting in the near future. A preliminary injunction hearing was conducted during March 1996 that included nine days of live testimony, and the introduction into evidence of over 300 exhibits, and approximately 800 pages of deposition excerpts.

 Were it the determinative issue in this litigation, the Court would have little difficulty in concluding that SuperBait is a more effective product than RAID Max Plus. In this regard, Clorox's new testing protocol impresses the Court as a particularly effective measure of the relative efficacy of roach bait products for purposes of product development, insofar as it successfully gauges the products' strengths and weaknesses free of the encumbrances that traditional testing techniques had encountered in attempting to conform testing methods to expected consumer experience, assuming consumer compliance with the product label instructions.

 The Commercial, however, does not confine its sales pitch to general statements of product superiority that the evidence amply would support, or for that matter, to a nonquantitative claim that testing proves that SuperBait kills more roaches than RAID Max Plus. Rather, the Commercial states, in virtually unqualified terms, that "testing proves Combat SuperBait kills up to 98%" of consumers' roaches, while RAID Max Plus kills "no more than 60%." These claims, known in the legal vernacular as "establishment claims," therefore seek through advertisement to superimpose the results achieved in the sanctuary created by Clorox's new testing protocol, and in selected laboratory tests, into the variable-ridden world of consumers' homes. Because the Court finds that plaintiff has met its burden of proving that defendant's tests -- when applied to the untoward purpose of supporting quantitative declarations of product efficacy in home use -- fail to substantiate the Commercial's unqualified propositions with respect to each of the products at issue, plaintiff's motion to enjoin the Commercial is granted.


 A. Introduction

 1. In the instant action brought pursuant to § 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), plaintiff SCJ seeks a preliminary injunction enjoining defendant Clorox from making certain challenged advertising claims. These claims, which concern the effectiveness of two competing household roach control products -- SCJ's RAID Max Plus and Clorox's SuperBait -- were presented last summer in a 30-second television commercial entitled "Weapon" (the "Commercial").

 2. The Commercial begins with a woman in her kitchen looking at cockroaches. The voice of a male (who later appears on screen as a scientist dressed in a white laboratory coat) tells consumers that "It's you against thousands of them. Choose your weapon wisely." The woman holds up a single package of RAID Max Plus (see Answer P 9), while the scientist declares: "This, only gets rid of some of your roaches." The woman then holds up a single package of SuperBait, while the scientist says: "This, kills just about all of them. And their eggs." The scientist then appears on screen dressed in laboratory attire and states, "In fact, testing proves COMBAT SuperBait kills up to 98%. The other guys [i.e., RAID Max Plus], no more than 60%." When the scientist refers to the SuperBait results, a single package of SuperBait appears on the screen, above which appears the caption "KILLS UP TO 98%." Similarly, when the scientist refers to "the other guys," a single package of RAID Max Plus appears on the screen, together with the caption, "KILLS NO MORE THAN 60%." PX 1, 2.

 3. The Commercial began airing on June 26, 1995 (Answer P 1), and it appeared on television stations in the New York metropolitan area and across the United States throughout last summer. SCJ commenced this action on July 13, 1995. On July 20, 1995, this Court denied SCJ's application for a temporary restraining order but granted its request for expedited discovery in advance of a preliminary injunction hearing. The Court conducted an evidentiary hearing on SCJ's preliminary injunction motion over the course of nine days between March 11 and 27, 1996. Unless enjoined, Clorox intends to resume broadcasting the Commercial in the near future. Clorox Pre-Hearing Mem. 1.

 B. The Products Featured In The Commercial

 4. Both RAID Max Plus and SuperBait are over-the-counter ( "OTC") products intended for use by consumers in treating infestations of German cockroaches in their homes and apartments. The German cockroach is recognized to be the most prevalent household cockroach pest species in this country (Owens 93/17-24), and all references to "cockroaches" or "roaches" are to the German cockroach. *fn1" There are, at a minimum, "millions" of strains of cockroaches -- i.e., individual populations -- located in households throughout the United States. Cochran 516/25-517/7. While infestations tend to be somewhat more common in Florida and other southern states whose high temperatures and relative humidity are especially conducive to cockroaches, see Owens 119/21-25; PX 89, Table 33 at 15, roach infestations are not limited to any geographical area, and are found in residences throughout the United States. Owens 97/17-98/2. For that reason, roach bait manufacturers advertise their products in locations throughout the United States. See Shapas 751/22-752/11. Moreover, the cockroach is not a respecter of socioeconomic class and is found in all sorts of housing, from private homes of all sorts to low-income housing. Owens 97/17-98/2. Indeed, according to an internal SCJ marketing analysis conducted in the ordinary course of business, 72% of roach bait users live in single family homes and only 28% are apartment dwellers. PX 89, Table 35 at 17.

 5. It is not surprising that U.S. consumers spend vast sums -- over $ 300 million in 1995 alone (PX 91) -- in an attempt to control roach infestations in their homes. Cockroaches can contaminate food supplies and kitchenware with bacteria and other microorganisms, and are a source of many potent allergens. Owens 96/17-97/16; PX 18 Chap. 4. The principal forms of OTC roach control products are sprays, foggers and baits. Owens 98/5-16. Roach baits, the subject of the Commercial, consist of a disc (also referred to as a bait tray or bait station) that contains a roach food (referred to as a bait "base") mixed with an insecticide. Roaches foraging for food enter the bait station, eat the toxic bait base, crawl away and die. Owens 102/6-103/7; PX 17.

 6. The two Clorox roach bait products marketed to consumers, SuperBait (PX 111) and COMBAT Roach Killing System ( "Regular COMBAT") (PX 114), each contain the insecticide hydramethylnon. Hydramethylnon is a relatively slow-acting metabolic poison that "inhibits the ability of the cockroach to have energy to move. So it is like a windup toy that eventually runs to a stop." Koehler 1341/14-1342/5. Regular COMBAT was first introduced by American Cyanamid ( "Cyanamid") in the mid-1980s. Shapas 597/9-12. Clorox acquired this and other COMBAT products from Cyanamid in the summer of 1990. During the winter of 1993, Clorox began marketing SuperBait. Silverman Dep. 67/7-11. SuperBait contains slightly more hydramethylnon by weight than Regular COMBAT and the food material in SuperBait is designed to appeal to a broader spectrum of roaches; the toxic formulations of these products, however, are identical. Shapas 606/4-25. Clorox's Dr. Shapas acknowledged that the increased amount of hydramethylnon in SuperBait would not likely have any impact on primary kill, i.e., roach deaths caused by eating the bait directly. Id. 753/5-11. And, while Dr. Shapas theorized that the increased amount of hydramethylnon in SuperBait would increase the amount of secondary kill (id.) -- i.e., roaches killed by eating the excrement of other roaches poisoned by the baits (Silverman 1157/20-1158/3) -- the only Clorox field test in evidence comparing those products reveals a relatively modest difference in efficacy. PX 60; Owens 205/2-15. *fn2"

 7. RAID Max Plus (PX 16) is actually two products contained in one package. It consists of (a) 12 roach baits and (b) 3 small containers of the insect growth regulator Hydroprene, which sterilizes certain roaches that come in contact with it. Owens 335/9-336/9; Koehler 887/4-888/17; PX 101, 125. The insecticide in the roach bait component of RAID Max Plus is called chlorpyrifos, also known by the brand name Dursban. PX 17. Dursban is a relatively fast-acting "nerve poison . . . that acts somewhere between one and five hours after exposure." Koehler 1340/11-20. Dursban "affects the nervous system resulting in excessive nervous firing," and causes the cockroach to "have spasms, flip over on its back," twitch its legs and "ultimately . . . die." Id. 1340/21-1341/1.

 8. When SCJ initially introduced RAID Max Plus roach baits in 1989, the product contained an insecticide known as sulfluramid. DX 144. In August 1994, SCJ voluntarily recalled this product nationwide because of EPA concerns about the child resistant package design of the product. See PX 92. RAID Max Plus remained off the market until early 1995, when it was relaunched with Dursban as the active ingredient. See PX 23. Even after SCJ began marketing sulfluramid baits in 1989, it continued to market Dursban baits as well, first under the name RAID Roach Controller (PX 12), and since 1990, under the name RAID Roach Bait (PX 13) ( "Regular RAID"). The formulations of Regular RAID and RAID Max Plus baits are identical. Koehler 826/19-828/17.

 9. Clorox characterizes SCJ's Dursban baits, including RAID Max Plus, as a "terrible product." Clorox Opening Statement 40/2-5. However, although Dursban baits can, in some situations, be compromised where cockroach strains have developed resistance to that insecticide, consumer tests conducted in the ordinary course of SCJ's business to monitor consumer satisfaction with OTC roach baits show that consumers rate RAID Dursban baits on substantial parity to Clorox's baits. E.g., PX 131 at 1075; PX 132 at 392; DX 70 ("Blind label testing of RAID Roach Bait, RAID Max and COMBAT showed that consumers could not perceive any performance differences between the 3 bait products.").

 C. The Inconsistent Performance Of Roach Baits In The Real World

 10. SCJ is by far the leader in total sales of roach control products (Mar. 27, 1996 Stip.; PX 91), which in part reflects the fact that consumers spend nearly twice as much on sprays as on baits. See Mar. 27, 1996 Stip.; PX 91. In the roach bait sub-category, however, Clorox is the clear market leader (57.7% market share in 1995), with SCJ a distant second (18.5% market share in 1995). Mar. 27, 1996 Stip. at 1 P 3.

 11. Unlike sprays, which consumers can target directly on roaches they see and on surfaces where they observe roaches moving, roach baits are passive instruments of roach control. Owens 98/8-99/8. Consumers set out the bait stations in their homes, where they compete with other food sources for the attention of roaches that are foraging for food and water. Id. 102/1-13; PX 18 at 246. Thus, roach baits cannot work unless significant numbers of roaches happen to encounter the bait station and ingest a lethal dose of the bait food. Owens 99/3-8; PX 18 at 239. Even roach baits to which no resistance has been demonstrated, such as hydramethylnon, can frequently be rendered ineffective by the inherent limitations in such a passive system of roach control. See Owens 99/3-8. As Clorox's own expert, Dr. Austin Frishman, observed in a recent article in a trade journal for PCOs, "even the best of baits fail under field conditions in some circumstances." PX 51 at 23.

 12. The efficacy of roach baits in the real world is highly variable and often compromised by factors unrelated to the killing power of the poison. For example, sanitation conditions can greatly impair bait performance: "baits work best when availability of competing food sources in the infested areas is minimized. Therefore, the level of control with baits in apartments or homes with poor sanitation will not be as high as in clean apartments." PX 18 at 295; Owens 256/13-16. Bait depletion can impair control as well. Shapas 628/19-629/1, 783/8-14; Boase 1483/14-19. Other relevant variables include the amount of "clutter" (Koehler 824/7-17); the relatively rigid and often narrow foraging patterns of roaches (Owens 132/3-133/12; see PX 18 at 251-53); and the overall impact of human behavior upon all of these conditions. Owens 70/19-71/3; Koehler 824/18-825/15.

 13. Another critical factor in achieving effective control with baits is the placement of the baits. Frishman 713/18-714/20; PX 18 at 249. The objective of effective bait placement is that "the baits must be placed between where the cockroaches harbor and where they eat." PX 51, Item 6. However, this is more easily said than done. Roaches generally live in groups in dark locations that are not readily visible to human beings, such as in cracks and crevices in the walls, wall voids, and inside and under furniture, appliances and cabinetry. (These locations are sometimes referred to as harborages). Owens 65/15-23, 103/4-7. Roaches typically search -- or "forage" -- for food and water at night when lights in the home are off and there is no human activity. PX 18 at 49; Owens 102/9-13; Koehler 1387/12-20. Moreover, most roaches generally have a very limited foraging range, rarely foraging more than a few feet from their harborages. Owens 132/7-14, 296/2-8; see PX 18 at 251, 253.

 14. As a result, the key to effective bait placement is not only to place the baits as close as possible to cockroach harborages, but also to locate all of the harborages in the apartment so that a bait can be placed in very close proximity to each harborage. Frishman 708/10-19; PX 18 at 250. Otherwise, the roach baits -- no matter how effective the poison -- will not kill roaches living in untreated harborages, and the treatment therefore will not come close to eliminating the infestation. Clorox's expert Dr. Frishman has publicly acknowledged this to be true, noting that "no matter how attractive the bait, if the placement is wrong you may kill 50 percent of a cockroach population, but you need a 96 percent-plus kill to put a permanent dent in their numbers." PX 51, Item 6.

 15. Although Clorox's experts testified that consumers have occasionally taken them "by the hand" (Frishman 709/21-25) and "by the arm" (Boase 1456/17-20) to show them where the roaches are, the credible evidence demonstrates that most consumers do not and cannot know the location of all of the cockroach harborages in their homes. *fn3" First, since roaches harbor in dark areas that are not readily visible to humans and quickly scurry away when lights are turned on (Koehler 1387/3-20), the sight of roaches foraging for food and water at night will, at best, give the homeowner only a vague clue about the locations of possible harborages. Second, in its cross-examination of Dr. Koehler, Clorox took pains to establish that many of the apartments where the parties have conducted field studies have cockroach infestations of 10,000 or more roaches. Koehler 949/12-952/1; DX 43. Depending on the number of cockroaches contained in any harborage, the number of harborages contained in those apartments would range from approximately 30 to 300 or even more. Compare PX 18 at 62-63 (10 to 30 roaches per harborage) with Boase 1597/1-22 (has seen harborages with as many as 200 to 300 roaches). It is extremely unlikely that any consumer would even appreciate the existence of so many cockroach harborages in his or her apartment, much less be able to locate them with precision. Third, the fact that both Clorox and SCJ use diagrams on the labels of their roach bait products to inform consumers of the "most important locations" (PX 111) and the locations which will produce "the best results" (PX 16) is compelling evidence that both companies recognize that many consumers do not know the optimum placement locations for baits in their homes. See also PX 18 at 249-50 (showing a placement diagram from a COMBAT package and noting that "placement guides have been developed to assist in bait placement. . . . These guides accompany most bait products, and generally point out places where bait should be installed in order to maximize cockroach contact.").

 16. Finally, there has emerged in the U.S. an industry of professional pest control operators ( "PCOs") who, according to Dr. Frishman, sell their services to consumers based in part on their superior training and ability to effectively locate cockroach harborages and to properly lay out roach bait stations in consumers' homes. See PX 51. On cross-examination, Dr. Frishman testified that PCOs are often trained in proper bait placement techniques and have at their disposal tools for locating out-of-the-way harborages, such as mirrors and sticky traps, that are not readily available to consumers. Frishman 708/10-19, 710/3-14. Dr. Frishman conceded that even assuming "consumers have a pretty good idea of the majority of locations where roaches are, it is the peripheral areas that take the extra effort," and "it is the peripheral areas, and the value added from the training [which] the PCOs often have, that often can make the difference between eliminating or virtually eliminating the roach infestation on the one hand and getting only moderate or inadequate control on the other [hand]." Frishman 708/20-709/7.

 17. Indeed, as Dr. Frishman has recognized, even trained PCOs often fail to locate and properly place baits in close proximity to all of the cockroach harborages. Thus, as Dr. Frishman wrote in an article directed at PCOs (PX 51):


6. You placed the bait in the wrong area. This is easier to do than you might think. You were not aware of how many locations the cockroaches were hiding in when you initiated your baiting program. The baits must be placed between where the cockroaches harbor and where they eat. No matter how attractive the bait, if the placement is wrong you may kill 50 percent of a cockroach population, but you need a 96 percent-plus kill to put a permanent dent in their numbers. . . .


9. The puck [i.e., professional bait station] was placed in the correct zone, but incorrectly placed within the treat zone. You cannot just place a bait any way you want to. . . . The pucks should be tucked in corners or along edges where cockroaches most likely congregate or walk. You have to think like a cockroach. That's why you are the professional. . . .


12. You missed a major pocket of cockroaches. This serves as a dispersion point to other areas. The sticky traps can help you find them. *fn4" Keep in mind that you are trying to control living organisms. It is not a simple mathematical formula that works every time. You sometimes have to adjust what you did to get the baits to do the job. I call it "tweaking the baits to perfection."


14. You missed the zone by one inch! What? How can that be? Simple. The air currents are moving the bait odors in the opposite direction from where the roaches are.

 PX 51.

 18. When one steps back from the Clorox's advocacy and looks at how both PCOs and respected academic entomologists view the utility of baits, one gets a very different picture than the one painted by the Commercial. Donald Reierson -- a widely respected entomologist at the University of California - Riverside (see Shapas Dep. 231/4-17), who has substantial experience with hydramethylnon (PX 97; DX 56, 131) -- recently wrote that except "under optimal conditions . . . such as might . . . occur in a vacant apartment," baits do not "lead to the [roach] population being eradicated," that while "bait usually reduces the number of cockroaches present . . . other measures are needed to keep the population suppressed," PX 18 at 259, and that "except where conditions for control of [German cockroaches] with bait are ideal, one should have modest expectations for control with current baits. Greater, and more acceptable levels of control will generally require supplementation of bait use with other control methods." PX 18 at 265.

 19. Similarly, since the livelihood of PCOs depends on their ability to effectively treat infestations, and since, unlike sprays and dusts, "in this age of increasing chemical awareness, baits are considered . . . especially safe . . . [and are] easy to use [and] virtually odorless" (PX 18 at 234), PCOs would have a powerful incentive to use baits exclusively if they provided the type of control the Commercial promises. In fact, however, as Dr. Frishman admits, in many areas of the country as few as 10% of PCOs use baits exclusively (Frishman 693/20-694/10), notwithstanding that Clorox's Maxforce baits, which are identical to SuperBait with respect to their active ingredient (id. 660/21-25), have been available to PCOs for nearly a decade. See PX 66 at 2309; DX 53 at 35; DX 73 at 1280-81. By contrast, Dursban sprays remain today one of the most popular insecticides among PCOs. Cochran 524/3-12, 542/11-19; Frishman Dep. 55/5-20; Boase 1644/17-1646/22. In like manner, despite the prevalence of Clorox's advertising, fewer than 20% of consumers with roach problems use baits exclusively. PX 89 at 37.

 20. The clinical evidence confirms that when the baits are used in a manner consistent with label directions, SuperBait rarely even approaches the level of 98% control promised in the Commercial. For example, although Clorox reported that SuperBait reduced roach populations on average by 84.4% in one such test (PX 61), in other Clorox field tests, SuperBait achieved average roach population reductions of only 29.9%, 34.1%, and 44.5% (PX 60, 61). The methodology used in these tests, and the changes in methodology employed in Clorox's new protocol, are discussed at PP 61-67 infra.

 D. The Original Version of the Commercial

 21. In the Spring of 1994, Clorox, having become dissatisfied with the results of testing under its existing field test method (Shapas Dep. 136/19-137/12; Bieman 1013/2-12), developed a new field test protocol (Bieman 1015/11-15, 1080/8-1081/5; PX 42), and tried it out for the first time. Bieman 1026/7-16. The products tested were SuperBait and SCJ's then-current RAID Max Plus product, which contained sulfluramid. Id. 1026/17-18. The test sites were two low income public housing complexes in Miami, Florida (the "Miami Field Test"). DX 25, 26. Based solely on the results of the Miami Field Test, Clorox began developing a commercial that was to have stated that "SuperBait kills 98%, RAID Max only 55%." See PX 19. Clorox's Claim Index for this version of the commercial (id.) -- a document that identifies what scientific support Clorox has for each of its advertising claims (Ochomogo Dep. 78/7-22)-- states that the Miami Field Test was intended to be the substantiation for that proposed commercial's comparative claims. See PX 19.

 22. In early 1995, apparently before the 98% versus 55% version of the commercial was ever filmed, Clorox learned that RAID Max Plus would contain Dursban in 1995 instead of sulfluramid (Shapas 740/5-9; PX 23). Clorox quickly appreciated that the change in formulation rendered any comparative claims based on its field test of the sulfluramid product invalid, and so informed its advertising agency, Young & Rubicam ( "Y&R"). Thus, in a March 10, 1995 memo (PX 23), Mark Adams of Y&R stated that "Clorox informed Y&R that Raid Max Plus EggStoppers has been reformulated with the active ingredient Dursban -- making our '98% versus 55%' claim invalid." Id. (emphasis added).

 23. Having planned to shoot the Commercial on April 17, 1995 based on the Miami field testing results, Clorox and its advertising agency were in a bind. As Y&R later observed in a memorandum dated April 6, 1995, "it is important to realize that we have financially committed to our shoot date without proper written substantiation for the majority of competitive and superiority claims made in these [story] boards." PX 24 (emphasis in original). Thus, in April 1995, Clorox conducted an in-house laboratory test (Koehler 811/16-812/13; PX 24, 35, 36) (the "First Laboratory Test") comparing SuperBait, RAID Max Plus with Dursban, and two other RAID formulations, including Regular RAID. *fn5" Clorox conducted the First Laboratory Test in tiny arenas the size of a sweaterbox. Koehler 813/16-815/16; see PX 31. Each product was tested three times (PX 28 at 3975; Koehler 818/16-19); each time, twenty cockroaches were placed in each arena along with one bait and alternative sources of roach food. PX 28 at 3974; Koehler 816/9-24. The results of the First Laboratory Test reflect the percentage of cockroaches that died as the result of a 20-day exposure to a single bait. PX 28 at 3975; Koehler 816/21-24. In the First Laboratory Test, by the end of 20 days, Clorox reported that SuperBait had killed 58 of 60 roaches, or 98%, while RAID Max Plus killed 36 of 60 roaches, or 60%. PX 36; Koehler 819/15-20. Regular RAID killed 48 of 60 roaches, or 80%, in that same test. PX 36; Koehler 829/5-20.

 24. The First Laboratory Test was the only "testing" used to substantiate the Commercial at the time that the storyboard containing the "98% to 60% claim" was formulated in May 1995. Specifically, the Claim Index for the Commercial (PX 22) unambiguously identifies the First Laboratory Test as the sole support for each of the advertising claims in the Commercial. Similarly, a May 18, 1995 Y&R document stated that "we are supporting this claim with the attached substantiation only." PX 28 at 3969. The claim is identified as "In fact, testing proves Combat SuperBait kills up to 98%. The other guys, no more than 60%." Id. The only substantiation attached was a May 10, 1995 memo from Dr. Ochomogo -- the in-house Clorox scientist in charge of coordinating advertising claim substantiation (Ochomogo Dep. 48/6-10) -- summarizing the method and results of the First Laboratory Test. PX 28 at 3974-76. In deposition testimony, Dr. Ochomogo likewise conceded that the substantiation for the Commercial was a "lab test comparing Combat SuperBait [with] RAID Max Plus." Ochomogo Dep. 48/21-49/10.

 E. The Second Laboratory Test

 25. Clorox thereafter conducted a second laboratory test (the "Second Laboratory Test") comparing SuperBait and RAID Max Plus with Dursban. PX 39; Silverman 1184/22-1185/7. The Second Laboratory Test was completed prior to June 7, 1995, more than two weeks before the Commercial was first aired. PX 39; Answer P 1. Dr. Jules Silverman, the Clorox scientist who directed that the Second Laboratory Test be performed (Silverman 1184/22-1185/12), testified that he was satisfied with the methodology for the Second Laboratory Test (id. 1239/11-16), and intended to use the results of that test as substantiation for making an advertising claim that a single SuperBait bait would kill more roaches that a single RAID Max Plus bait. Id. 1186/17-23, 1239/3-10. The results of the Second Laboratory Test were reported in a June 7, 1995 Clorox internal memorandum prepared by Cara Drouin, the Clorox scientist who performed the test. PX 39; Silverman 1237/22-1238/19. Ms. Drouin reported that "Raid Max with Dursban kills more roaches than Combat SuperBait." PX 39. This result directly contradicted one of the messages Clorox intended to deliver to consumers in the Weapon Commercial -- that "Combat SuperBait kills more roaches than even products with Egg Stoppers." (PX 21). *fn6" Furthermore, the internal memorandum reporting the Second Laboratory Test shows that, after 21 days, RAID Max Plus with Dursban, on average, killed 1,112 of the approximately 1,200 roaches in each arena at that time, or approximately 92.67%. PX 39.

 26. Defendant Clorox argues that the Second Laboratory Test is entirely irrelevant and unreliable, and therefore may not be considered by the Court in its evaluation of Clorox's establishment claims. The defendant contends that the Second Laboratory Test is invalid because it was conducted with susceptible roaches maintained in the lab for decades with no resistance to any insecticide. Silverman 1186-87. The defendant also asserts that it was not an efficacy test. Silverman 1240-41. In this regard, Dr. Silverman testified that the Second Laboratory Test "didn't measure the number of insects killed versus the total number in there." Silverman 1240-41. Specifically, he testified that no exact records were kept of the precise number of roaches that constituted the initial testing population, Silverman 1241, or of the exact number of roaches that were added to the arenas during that test. Silverman 1240-41. As Dr. Silverman explained "one cannot derive percent kill data when you don't know what the total population was initially." Silverman 1242.

 27. The Court finds unpersuasive Clorox's argument that the Second Laboratory Test is irrelevant to an evaluation of its "no more than 60%" claim. First, Dr. Silverman, Clorox's own scientist, testified on cross-examination that although he didn't know whether there were exactly 500 roaches in the initial roach population, he in fact knew the "very approximate" number. Silverman 1241/20-22. Dr. Silverman further testified that he regarded Cara Drouin, the scientist who performed the test (and who works for Dr. Silverman) to be very precise. Silverman 1242/11-19. Because the approximate number of roaches in the population at fixed dates, and the precise insect mortality, were reported by the Clorox scientist, it impresses the Court that this experiment permits some quantitative conclusions to be drawn, allowing a reasonable margin for error, concerning the extent to which the SuperBait and RAID Max Plus products reduced the respective roach populations to which they were applied. To the extent that Dr. Silverman suggests otherwise, the Court finds his testimony not to be credible.

 28. Second, the Court finds without merit Clorox's contention that it would be inappropriate for the Court to consider the Second Laboratory Test because the roaches that were tested were not resistant to Dursban. As the Court subsequently will discuss, see infra P 54, Dursban resistance among the German cockroach, although occurring in widespread "pockets" throughout the United States, is not pervasive. Thus, although the Second Laboratory Test is clearly not indicative of how the products at issue could be expected to perform in certain low income housing units in Florida, see Koehler 1301, the Court finds this test to be highly relevant to an evaluation of how these products would perform in locations throughout the United States where Dursban resistance or repellency is not as frequent, such as Long Island, where this Court sits.

 29. In sum, the Court finds the Second Laboratory Test to be relevant to its evaluation of Clorox's claim that RAID Max Plus kills "no more than 60%" of consumers' roaches, and that Clorox's failure to take this test into account materially undermines the reliability of this claim.

 F. Clorox's Field Tests

 30. At the preliminary injunction hearing, in addition to the First Laboratory Test, Clorox relied on four of its field tests as substantiation for the Commercial's claims: (i) a 1995 test conducted in Ocala, Florida, (ii) a 1994 test conducted in Miami, Florida, (iii) a 1994 test conducted in Sanford, Florida, and (iv) a 1994 test conducted in Puerto Rico. DX 160. However, in identifying its substantiation for the Commercial in internal documents before this litigation arose, Clorox did not mention any of those tests, even though the Miami, Sanford and Puerto Rico tests were all completed in 1994, many months before the Commercial was filmed. PX 22, 160; see supra P 24. Indeed, a pre-litigation Y&R document specifically noted that Clorox was not relying on the Sanford test. PX 28 at 3969.

 31. The results of the four field tests upon Clorox relies are summarized below:

 The 1995 Ocala Field Test : This was the only field test performed by either party on the currently marketed formulas of SuperBait and RAID Max Plus Egg Stoppers containing Dursban. Mr. Bieman, a PCO employed by Clorox, was assisted in that test by Jose Tomeu of Alachua Pest Control, who chose the test site from locations suggested by the Ocala Housing Authority, collected the sticky traps, and counted the roaches at the test's conclusion. Bieman 1042. At the completion of the test, SuperBait had achieved a mean kill rate of 97.05% versus 50.72% for RAID Max Plus Egg Stoppers with Dursban. DX 41 at 3009A.

 The 1994 Miami Field Test : The results of the Ocala field test are consistent with the results of a field test conducted a year earlier in Miami, Florida, in which SuperBait achieved a 99.2% mean reduction in roaches compared to a 50.9% mean reduction in apartments treated with RAID Max Plus Egg Stoppers containing sulfluramid, the product SCJ was marketing at that time. Bieman 1035-36; DX 26.

 The 1994 Sanford Field Test : In July 1994, after the Miami test, Clorox conducted a field test of SuperBait in Sanford, Florida. Even though the infestation at the site was substantial, SuperBait killed, on average, 94% of the cockroaches at the end of twelve weeks. Bieman 1038; DX 29.

 The 1994 Puerto Rico Field Test : Clorox subsequently tested its product in apartment blocks in San Juan, Puerto Rico. After thirteen weeks, the cockroaches in untreated apartments had increased by 63%, but the apartments treated with SuperBait obtained a 97% reduction. Bieman 1040; DX 31.

 32. Each of these four field tests involved SuperBait. However, only one, the Ocala test, also involved RAID Max Plus with Dursban. The Ocala test did not begin until after the Commercial was filmed (compare PX 24 at 3010 with PX 79 at 1) and was not completed until nearly two months after the Commercial began running in late June 1995. Compare DX 41 with Clorox Answer P 1. These four field tests each used a methodology developed in March 1994 by Clorox employee Donald Bieman. Bieman 1015/11-15; DX 17. This new Clorox methodology resembles other, established field testing methods in only the most general terms: Clorox conducts its field tests in low-income public housing; it uses sticky traps to sample the roach population within an apartment; it then applies roach bait treatments to infested apartments; and it uses sticky traps at regular intervals throughout the test (i.e., post-treatment traps) to measure changes in cockroach populations, expressed in terms of mean percent reduction. Owens 113/25-115/1, 124/13-126/15, 131/6-24; see Boase 1458/3-1462/17; DX 17.

 33. In implementing this general approach, however, the Clorox protocol not only relies on the skill of a trained professional to locate cockroach harborages and strategically place the baits in close proximity to the harborages, but also deviates substantially from label directions in the number and placement of baits. Koehler 847/11-848/11; see DX 3; DX 17 at 88. Under the new Clorox protocol, Mr. Bieman, a licensed PCO (Bieman 991/14-17), first conducts a detailed and systematic inspection of each apartment, either by himself or with another PCO assisting him. Id. 1017/20-1018/7. This inspection can last up to two hours, factoring in the time attributable to documenting the location of the traps and setting the traps. Bieman Dep. 72/9-73/6. *fn7" The inspection includes the use of sticky traps to locate suspected roach harborages. See DX 17 at 87. As Mr. Bieman acknowledged, this usage of sticky traps differs markedly from traditional field testing methods, in which sticky traps are employed only to monitor changes in roach populations, not to locate harborages. Bieman 1100/24-1101/6.

 34. Under the new Clorox protocol, Mr. Bieman places a sticky trap at each location where cockroaches are seen in the initial inspection. Bieman 1017/20-1018/25; DX 17. If the trap catches four or more roaches, baits are placed at that location "in a position right next to where the trap is" in order to "monitor what is going on where you put the baits." Bieman 1020/4-18. Thus, in the new Clorox protocol, the number and location of baits may vary from one apartment to another, depending upon the results of Mr. Bieman's inspection and sticky trapping. Id. 1020/4-1021/1. By contrast, in the traditional roach bait field test design discussed at PP 61-67 below, the number of baits is the same and the bait placement locations are the same or similar in each apartment in the test.

 35. The new Clorox protocol calls for at least 3 grams of bait -- the equivalent of 2 bait stations (Bieman 1083/6-14) -- to be placed at each location where a bait is placed. DX 17 at 88. However, Mr. Bieman placed three baits at each location in the Ocala test (Bieman 1137/2-5) and one large bait station for American roaches -- the equivalent of three German cockroach bait stations -- in the Sanford and Puerto Rico tests. Bieman 1121/4-1123/12. Clorox claims that this much bait is placed at each location due to concerns about bait depletion over the course of the test. Bieman 1083/6-1084/5; Shapas 628/6-629/2. Bait depletion refers to the situation in which all the bait in particular stations is eaten before a roach infestation is eliminated, such that there is no longer any bait at certain locations where roaches are present. Shapas 783/8-14.

 36. Clorox maintains that its new protocol is a scientifically valid means of testing the effectiveness of roach bait products, not only for internal testing purposes, but also for purposes of gauging the effectiveness of these products under the real-world conditions of consumers' homes. This proposition has not been adopted by any member of the urban entomology community outside of Clorox, other than by Clorox's paid expert witness in this case, Mr. Boase. Although Clorox maintains that Dr. Richard Brenner of the United States Department of Agriculture endorsed aspects of the new protocol (Bieman 1022/4-8; Boase 1469/18-21, 1623/19-1624/1), Dr. Brenner's deposition makes it clear that he did not intend "to communicate that [he] approved or endorsed Clorox's field test protocol as a valid and appropriate method for determining the percent of cockroach population reductions in infested residences." Brenner Dep. 40/10-17. Dr. Brenner specifically declined to sign a letter proposed by Clorox which stated that "[Clorox's] methodology makes the results more accurate and precise than previous methods." PX 55. *fn8"

 37. Even more importantly, abstract debates over whether or not the new Clorox methodology may be a scientifically valid for some purposes are of no relevance to SCJ's motion. In assessing an advertised claim to consumers based on scientific tests, one cannot evaluate the appropriateness of the test method without also considering whether the test in fact measures what is being claimed. Here, the Commercial unambiguously informs consumers how SuperBait and RAID Max Plus will perform when consumers use those products in their homes. Thus, irrespective of whether the new Clorox protocol is a valid and appropriate method for a PCO to treat a roach infestation, or for comparing roach baits for product development purposes, it can only substantiate the claims in the Commercial if it measures how the products will work when used by consumers in their homes following product label directions. *fn9" In three critical respects, the new Clorox protocol fails to substantiate the claims made in the Commercial.

  38. First, Mr. Bieman's role in inspecting and baiting the apartments interjects an entirely unrealistic element as compared to how these products are applied in the real world. It cannot seriously be disputed that professional PCOs are far better trained than the average consumer -- and, with the use of sticky traps, much better equipped -- to locate cockroach harborages and place baits in a manner that will optimize performance. Koehler 850/10-12 ("Basically, the average consumer would not have anywhere near the capabilities that Mr. Bieman has in locating harborages."). And, while Mr. Bieman testified that consumers are even more capable of locating harborages than are PCOs (Bieman 1101/24-1102/11), that testimony is not credible. If Mr. Bieman were correct, there would be little need or justification for PCOs, a point which Dr. Frishman recognized when he conceded that he "wouldn't be making a living" if professionals were not more skilled than consumers "in determining precisely where to place the baits. . . ." Frishman 716/4-9. Dr. Frishman further conceded in cross-examination (712/2-16):


Q. And you would agree in many situations [Mr. Bieman's] skills and your skills in locating cockroach harborage areas are better than the homeowners?


A. Yes. In terms of the out-of-the-way places. But there are times when we rely on that homeowner -- in other words, part of the training I do, which is standard procedure, is to ask the people living in the facility where do you see the cockroaches?


Q. But wouldn't you agree, Doctor, that many times when you go into apartments for treatment, and you see evidence of somebody's consumer baits lying around, it doesn't matter who it is, one of the most frequent reasons for failure is that the baits are not located in sufficient proximity to the harborages, to all of the harborages?


A. In many cases, yes.

 Frishman 712/2-16. Because precisely placing baits as near as possible to roach harborages is critical to the success of baits, see supra PP 13-18, Mr. Bieman's superior expertise in locating roach harborages is highly likely to have influenced significantly the percent reductions SuperBait has achieved in tests conducted under the new protocol. Koehler 848/15-852/1.

 39. Second, the number of baits used in the new Clorox protocol is completely inconsistent with product label directions. Both SuperBait and RAID Max Plus are sold in packages of 12 baits. In plain and unambiguous language, the SuperBait label states, "For thorough roach control, use all 12 bait stations at the same time." DX 3. In similarly clear terms, and in three separate places, the RAID Max Plus label states "for thorough roach control" and "for best results," "use all 12 bait trays at one time." DX 4. Yet in three apartments in the Ocala field study, including 2 of the 8 RAID Max Plus apartments, Mr. Bieman used only 6 bait trays (PX 113), or precisely half the number recommended on the label for "thorough roach control." DX 4. One such apartment treated with RAID Max Plus achieved only a 20.7% roach population reduction after 12 weeks, which substantially reduced the mean percentage reduction achieved by RAID Max Plus in this test. PX 113.

 40. Moreover, in many apartments in both the Miami and Ocala tests, Clorox used substantially more than 12 baits, and, in fact, averaged more than 2 boxes of baits. In seven apartments in the Ocala study, Mr. Bieman used 3 or more boxes of baits: 45 baits (apt. 2904); 57 (apt. 1630.4); 36 (apts. 1640.1 and 1628.1); 42 (apt. 3032); 63 (apt. 1628.2); and 42 (apt. 1630.6). PX 113. In fully half of the SuperBait apartments in the test, more than 2 boxes of baits were used. Id. Similarly, Mr. Bieman used at least 30 baits in nine apartments in the Miami study, including 98 SuperBait trays -- more than 8 packages -- in one apartment. PX 77.

 41. Clorox argues that the SuperBait label instructs consumers to use "at least " 24 baits in heavy infestations. Clorox Pre-Hearing Memo. 23 (emphasis in original). That is not true. In fact, the SuperBait label instructs consumers that "heavy infestation may require 2 boxes (24 bait stations)," DX 3, and does not suggest that more baits would ever be required. Moreover, the product labels do not define what a "heavy" infestation is and there is no evidence of what U.S. consumers perceive to constitute a "heavy" infestation. The evidence does suggest that consumers rarely use more than a single package: on average, consumers apply much less than a full package at a time -- 4.9 baits -- and only 10.5% applied 11 baits or more at a time. PX 142 at Question 6. This is counterbalanced to some extent by SCJ consumer survey data indicating that approximately 24% of the respondents replace their baits more frequently than every three months. PX 142, Response to Question 7. In any event, whether it would be proper to conduct a field test using up to 24 baits instead of 12 is not in issue here. There is no language on the SuperBait label (DX 3) that instructs consumers to use more than 2 boxes of baits under any circumstances, even in treating "heavy infestation." Furthermore, the Court expressly finds -- both with and without factoring in the aforementioned consumer survey evidence -- that no fair reading of the SuperBait label instruction would suggest to a lay consumer that, under certain circumstances, more than 24 bait stations would be required at a given time. But that is precisely what Mr. Bieman did. As Clorox's own contemporaneous document admits: "the total number of bait stations used in the test [for] both SuperBait and Raid were more than the number recommended on the label." PX 20 (emphasis added).

 42. Third, nothing on the label even remotely suggests that consumers should place multiple baits at each location where baits are placed, as Clorox does in its new protocol. This practice cannot be justified by Clorox's concern that bait depletion will affect the results of its field tests. Bait depletion is a fact of life when consumers use these products, in large part because consumers cannot readily tell when baits are depleted. These products only contain one-and-one-half grams of bait -- a tiny fraction of an ounce -- encompassed in an enclosed opaque case. Shapas 787/4-12; Koehler 877/9-16. Hence, "if [a bait station] was depleted, it would be very difficult for a consumer to tell whether it was empty or not." Koehler 877/14-16. *fn10"

 43. As Dr. Koehler testified, by using a PCO to locate harborages and place baits, by extensively using more than 24 baits, and by placing multiple baits at each location, the new Clorox protocol artificially boosts the performance of SuperBait far above the levels that would likely be achieved if the product were used by a consumer in accordance with label directions. Koehler 851/9-852/1, 860/16-861/8, 862/21-863/9, 871/6-872/17, 874/18-875/14. *fn11" The clinical evidence corroborates Dr. Koehler's opinion regarding the "boosting" effect of the new Clorox methodology on the efficacy of SuperBait. While in the Clorox field studies using the new method, SuperBait was reported to consistently achieve average percent reductions in the high 90s, in Clorox field tests using its previous methodology, SuperBait often reduced roach populations by less than 50%. See supra P 20.

 44. Furthermore, Mr. Boase, Clorox's own witness, conceded that the results of the Ocala field study would have been different if Mr. Bieman had placed only one bait at each bait location, rather than three:


Q. Mr. Boase, . . . I want you to make the following assumption: In [the] Ocala test, one bait was placed at each location rather than three baits for SuperBait, all right? I want you to assume that all other aspects of the protocol were followed by Mr. Bieman as he followed them in the actual test. Is it your position that the results in terms of percentage reduction would have been the same, different or you don't know?


A. It is my position that the results -- and we are talking about the results for the trial as a whole -- would have been different, or likely to [have been] different, had one used one bait station for either product, because there is a likelihood of bait [depletion] in some locales in some apartments, and this is what that three-bait-per-location issue is trying to address and remove. . . . *fn12"

 Boase 1638/23-1639/16.

 45. The remainder of Mr. Boase's answer to that inquiry, and other evidence from the mouths of Clorox's own witnesses, demonstrates that Mr. Bieman and Clorox developed the new protocol with the objective of eliminating real-world variables that cause SuperBait and RAID Max Plus to perform more evenly when used in accordance with label directions. Mr. Boase continued:


And I believe bait depletion and the experimental response of -- the researcher's response of dealing with bait depletion, or dealing with heavily infested apartments like this is an interesting challenge for researchers. Some choose to ignore it and follow the label with twelve or occasionally 24 baits, or don't recognize that these infestations are heavy.


The Clorox protocol recognizes they are heavy infestations and there is the possibility of bait depletion. And there is the possibility that this may induce unwanted variance within the trial.

 Boase 1639/17-1640/2 (emphasis added); see also Shapas 639/18-24 ("We think by putting the bait close to the insects, by eliminating bait depletion as a variable, and by using our sticky trap regime, where we are actually sampling where the roach population is, we have been able to minimize this sort of variability, and really tighten up our data sets so we can make really good product comparisons.").

 46. In his testimony, Dr. Shapas tried to portray the elimination of real-world variances as scientific progress, stating that the new protocol is "like focusing the Hubble Telescope, in that it now allows us to see things much more clearly." Shapas 635/8-10. However, as Dr. Koehler testified, the new Clorox methodology cannot be justified on that basis:


The purpose of scientific tests is not necessarily to reduce variance. And, basically, if consumers read the label, place the product out according to label directions, sometimes the product will work, sometimes the product won't work. And that is inherent variation as a result of that kind of treatment. Of course, that's exactly what some of these tests show. And any attempts to apply the bait away from the label directions in order to reduce variation, then, of course, that is inappropriate when it is characterized to consumers that that is the way the product will work when it is applied in their homes -- when they apply it in their homes, according to label directions.

 Koehler 878/5-21.

 47. In sum, the new Clorox methodology not only fails to test the effectiveness of household roach bait products when used by consumers in their homes in accordance with label directions; moreover, it affirmatively eliminates real-world variables that can affect the actual performance of roach bait products in consumers' homes.

 G. Low Income Public Housing Is Not Fairly Representative Of How RAID Max Plus Will Generally Perform In Other U.S. Households

 48. Both Clorox and SCJ have routinely conducted roach bait field efficacy trials in low-income public housing, often in Florida. The principal reasons for selecting such locations are practical ones, such as having enough infested apartments in close proximity that will provide adequate replication and that are similar in construction. Owens 114/12-115/5; Shapas 620/18-25. However, there is no dispute that low income public housing presents an unusually challenging environment for roach bait products due to a variety of factors, including poor sanitation and clutter that provide roaches with a plentiful array of alternative food sources, and make it more difficult for roaches to encounter the baits. Shapas 621/1-6; Owens 119/8-20; see PX 18 at 295 ("Baits work best when availability of competing food sources in the infested area is minimized. Therefore, the level of control with baits in apartments or homes with poor sanitation will not be as high as in clean apartments."); id. at 244. Indeed, Clorox acknowledged in its opening statement that the reason it tests in low-income housing is that "you test your products in the most challenging environment." Tr. 37/7-9.

 49. Clorox no doubt has sound reasons to conduct its basic scientific research in the most rigorous environment available. However, the Commercial states, without qualification, that RAID Max Plus kills "no more than 60%" of your (i.e., consumers') roaches. Thus, tests in low income public housing provide a questionable basis for telling consumers that RAID Max Plus will not achieve higher levels of reduction in less demanding environments, such as private homes and apartments located in Long Island and elsewhere in the United States.

 50. The Commercial is likewise unqualified and unequivocal in its comparative aspect, i.e., its claims that SuperBait kills just about all (up to 98%) of your roaches, while RAID Max Plus only kills some (no more than 60%) of your roaches. There is no doubt, however, that resistance to chlorpyrifos, also known by its brand name -- Dursban, substantially contributed to RAID Max Plus's erratic performance in Ocala. In fact, Clorox knew when it approved the Ocala site that RAID Max Plus would perform poorly there. As Mr. Bieman wrote in a June 17, 1995 report to Drs. Ochomogo, Silverman and others, "from our own experience (mine and Mr. Tomeu's) with chlorpyrifos in multiple housing settings in Florida, we anticipated its poor efficacy; chlorpyrifos has not been effective in more than 10 years in such locations." PX 79 at 3. *fn13" And, while Mr. Bieman was somewhat grudging in his acknowledgment at the hearing that Dursban resistance was the reason he expected RAID Max Plus to perform poorly (see Bieman 1125/19-1130/7), resistance was the only explanation offered in a Clorox document prepared by Dr. Ochomogo before this litigation began and shortly after Mr. Bieman wrote his June 17 report. PX 29 ("An explanation for this data is resistance in German roaches to [Dursban] . . . ."). Moreover, convincing testimony was provided at the hearing that Dursban resistance accounted for RAID Max Plus's performance in the Ocala test. Cochran 538/9-540/6.

 51. There is no evidence that Clorox made any attempt to ascertain whether the level or extent of Dursban resistance at the Ocala complex is fairly representative of other households throughout the U.S. Indeed, Mr. Bieman testified that he had never had any discussions on this subject with anyone at Clorox, and never even considered holding the test anywhere but in public housing in Florida (Bieman 1130/8-12), notwithstanding his prior knowledge of how the SCJ product would likely perform there and that, when the Ocala test began in May 1995 (see PX 79 at 1), Bieman had been aware for months that Clorox was considering an advertising claim based on its new protocol comparing SuperBait to RAID Max Plus. Bieman 1113/11-24. Thus, in asserting that the Commercial's advertising claims are substantiated by the Ocala test, Clorox is turning a blind eye to whether Dursban resistance at public housing sites in Ocala, Florida is at all typical of the scope and level of Dursban resistance in other types of residences throughout the United States, such as private homes and apartments.

 52. SCJ, meanwhile, has presented affirmative evidence to establish that the Dursban resistance encountered in the Ocala, Florida field test in not representative of the level of resistance to be expected in other regions of the United States that have a different demographic, or climatic, environment. This evidence took the form of the testimony of SCJ's expert, Dr. Donald G. Cochran, Professor Emeritus of Entomology at Virginia Polytechnic and State University, and a leading authority on German cockroach resistance. Dr. Cochran has studied, written about and taught the subject for the major part of his nearly 40 year career as an entomology professor (Cochran 500/20-502/17; PX 6); both sides have retained him to conduct resistance testing (Cochran 512/5-11); and Clorox's expert, Dr. Frishman, recommends that PCOs who suspect resistance problems contact Dr. Cochran (PX 153 at 2). Dr. Cochran testified that in his opinion, the extent of Dursban resistance in the Ocala study is not at all indicative of the extent of Dursban resistance generally in the U.S. Cochran 539/17-22. His opinion is consistent with other credible evidence. As Dr. Cochran testified:


Resistance is a genetic characteristic, and, therefore, for resistance to develop in any given population, the gene for resistance to that insecticide has to be present in that population. . . . In addition, there has to be an extensive and continued exposure to that insecticide. Because what has to happen is that the population basically has to be treated completely so that the insecticide has a chance to kill off the susceptible individuals within that population.

 Cochran (524/13-525/5) (emphasis added). This process generally takes a period of two or three years, during which the entire roach population "has to be exposed on a more or less continuous basis" to Dursban. Id. 525/13-526/1. As such, resistance is most likely to occur in commercial establishments and hospitals, which are heavily treated by professional PCOs on a monthly basis, and in low-income public housing complexes where state and federal regulations require regular pest control activities by professional PCOs. Id. 527/20-529/4. See also PX 123 (internal SCJ memo stating that "it would be reasonable to expect that [Dursban resistance] would be limited to areas subject to repeated heavy P.C.O. pesticide use"); PX 18 at 190. Predictably, the low-income public housing complex used in the Ocala test had long received regular cockroach treatments from PCOs. See Koehler 853/18-855/11. *fn14"

 53. Moreover, Dr. Cochran's opinion is corroborated by the testimony of Dr. Frishman, who acknowledged that he has extensive familiarity with the experience of PCOs with Dursban resistance on Long Island. Frishman 695/6-11. Dr. Frishman conceded that Dursban resistance on Long Island is rare and that in many areas of the country, PCOs are still able to control roach infestations with Dursban. Id. 682/11-15, 688/3-12, 690/8-692/19.

 54. In addition, Dr. Cochran's opinion is buttressed by the history of insecticide resistance, the continued substantial use of Dursban by PCOs. PCOs are in business to effectively treat insect infestations and it would be contrary to reason to believe that an insecticide would continue to be heavily used by PCOs if it were generally ineffective. See Cochran 523/4-10. Not surprisingly, history has shown that when high resistance levels become so pervasive that PCOs cannot achieve effective roach control with an insecticide, PCOs have quickly abandoned the insecticide, as they did with chlordane in the 1950s and malathion thereafter. Cochran 523/4-10. *fn15" By contrast, Dursban continues to be used extensively by PCOs today. E.g., Cochran 524/3-12; Frishman Dep. 55/5-20; Boase 1643/23-1646/22. Thus, as Dr. Cochran testified, while Dursban resistance may be "geographically widespread," it is not "pervasive." Cochran 541/14-542/10.

  55. Clorox's principal response is that more than half the roach strains Dr. Cochran tested in the last few years proved to be resistant to Dursban, from which Clorox extrapolates that Dursban resistance is pervasive in the United States. However, Dr. Cochran persuasively testified that the roach strains he tested represent a "skewed sample" (Cochran 588/1-12), because Dr. Cochran has made it well known to the "cooperators" who supply him with roaches that he is only interested in testing strains where control failures indicate resistance has occurred. Id. 519/1-22. This testimony is corroborated by an article published by Dr. Frishman in a PCO trade journal (PX 153 at 2), where Dr. Frishman urged PCOs to send roaches to Dr. Cochran for testing where control failures had occurred due to suspected resistance. *fn16"

  H. Field Testing Results Ignored by Clorox

  The Commercial's Comparative Claims

  56. The Commercial tells consumers not only that SuperBait consistently kills virtually all of their roaches, but also that it consistently kills far more roaches than RAID Max Plus. PX 1, 2. However, a different result was achieved in what appears to be the largest field test Clorox ever conducted comparing SuperBait to Regular RAID, which contains the same formulation as the roach bait component of RAID Max Plus. That test was a five product comparison conducted by Clorox in 1993, prior to the implementation of its new testing protocol, involving SuperBait, Regular COMBAT, RAID Max with sulfluramid, Regular RAID and Black Flag (the "Five Product Test"). One year earlier, in 1992, Clorox had concluded that a few roach strains had become averse to the glucose in Clorox's Regular COMBAT baits and that those strains were not averse to a bait base which contained fructose as the sole sugar. Silverman 1164/22-1165/5. Beginning in 1992, Clorox began field testing the presently-marketed formulation of SuperBait known as Krystar, which contains fructose and no glucose. See Bieman 1077/7-1078/14 (acknowledging that Krystar is the presently-marketed formulation of SuperBait); PX 61 (showing that beginning in 1992, all Clorox field tests of SuperBait used the Krystar formulation). Building on the 1992 field studies of SuperBait with Krystar, Clorox conducted the Five Product Test, which involved an average of 17 apartments for each product tested. At 12 weeks in the Five Product Test, SuperBait and Regular RAID performed at substantial parity: SuperBait achieved a mean reduction of 29.9% and Regular RAID a mean reduction of 26.7%. PX 60; Owens 204/15-205/15. *fn17" These results are a far cry from the Commercial's absolute and comparative claims about SuperBait's efficacy. *fn18"

  57. Moreover, RAID Dursban bait with Egg Stoppers and SuperBait performed statistically equally in the only SCJ field test comparing those products -- the 1993 study conducted by Dr. Gold of Texas A&M. PX 70. At 12 weeks, the RAID product achieved a mean reduction of 7.32%, while SuperBait achieved a mean increase of 26.3%. PX 70 at 115, 117; Owens 206/19-207/22. The RAID Dursban bait with Egg Stoppers also numerically outperformed SuperBait at the 2, 4 and 8 week intervals. PX 70 at 115, 117; Owens 206/19-207/22. *fn19" After conducting a statistical analysis, Dr. Gold concluded that "Old Combat (Maxforce) seemed to do better than the new formulation [i.e., SuperBait], and the new Dursban bait was equal to either Combat formulation tested." PX 70 at 111; Owens 208/17-209/14.

  58. Although Clorox began selling SuperBait during the winter of 1993, see supra P 6, Dr. Shapas testified that the new Krystar formulation did not become commercially available until 1994. Shapas 610/18-611/2. Clorox elected not to produce any documentary evidence to corroborate this testimony, even though such evidence was likely available. Dr. Shapas was not a credible witness (see Shapas 770/20-780/7, 791/7-792/17) and this testimony is rather dubious, in light of Dr. Silverman's acknowledgment that Clorox had isolated the glucose problem by 1992 and the documented fact that as early as 1992 (Shapas 773/1-9), Clorox's field tests of SuperBait used the Krystar formula. PX 61.

  59. In any event, even assuming that the Gold test involved the glucose version of SuperBait, its results are still relevant. Dr. Silverman and Mr. Bieman have acknowledged in a publication they co-authored that the problem of glucose aversion is "sporadic." PX 124 at 34. Clorox has never determined how widespread this phenomenon is (Silverman 1248/22-1251/8) and has never found any glucose-averse roaches in Texas, where Dr. Gold conducted his test, or in any other state besides Florida and California (and then only a single strain in the latter state). Silverman 1250/23-1251/15. Moreover, in the only field test in evidence comparing the efficacy of the glucose and fructose versions of SuperBait, there were no statistically significant differences. PX 64; Owens 210/4-212/19.

  The Commercial's "Just About All" And "Up To 98%" Claims

  60. In contrast to the Commercial's claims that SuperBait kills "just about all" and "up to 98%" of your roaches, Clorox's field tests using its previous protocol regularly achieved mean percent reductions of 50% or less. For example, at 12 weeks in Clorox's Five Product Test, the mean reduction for SuperBait was only 29.9% for the 18 apartments tested. PX 60; Owens 191/14-193/10. And, in two 1992 Clorox tests in Orlando, SuperBait with Krystar achieved mean reduction scores of 23.7% and 29.4% at 2 weeks; 50.3% and 12.4% at 4 weeks; 49.6% and -29% at 8 weeks; and 34.1% and 44.5% at 12 weeks. PX 61 at 910; see Owens 188/22-191/4. As further discussed at PP 61-67 infra, the field test methodology used by Clorox in those tests contained standard elements commonly used by urban entomologists for field testing OTC roach baits. As recognized by these entomologists and by pre-litigation documents, the standard elements are designed to, and do, follow package label directions. These and other relatively modest test results for SuperBait are confirmed by Clorox's Dr. Silverman who, in contrast to the exaggerated claims in the Commercial, represented to his fellow scientists in a peer-reviewed article that using the new bait formulation (i.e., Krystar), Clorox achieved population reductions of from 42-85%. DX 84 at 627.

  I. Other Issues Raised By Clorox

  Clorox's Criticisms of Standard Field Testing Elements

  61. In this litigation, Clorox has repeatedly criticized the SCJ field test protocol, which SCJ has referred to in its previous Court papers as reflecting an industry "standard methodology." In putting the SCJ methodology on trial, Clorox has tried to show that there is no one "standard" field testing methodology, and that the SCJ methodology is inconsistent with the label directions for the SuperBait and RAID Max Plus products. In the final analysis, however, Clorox has devoted considerable effort to proving a point that its own witnesses reject as untrue.

  62. Drs. Owens and Koehler each testified that while there are variations in certain aspects of the field testing methodology employed by U.S. urban entomologists, there are certain key elements that have long been standard, including: the use of the same number of baits (generally 12) in each apartment; the placement of those baits at the same or equivalent bait locations in each apartment; the placement of one bait only at each bait location in each apartment; where trapping instead of visual counting is employed, the use of the same number of traps in each apartment; and the placement of those traps at the same or equivalent locations from apartment to apartment (collectively, the "standard elements"). Owens 127/7-137/17; Koehler 878/22-881/9; PX 160. Drs. Koehler and Owens did not adopt this position for this litigation. Rather, the documentary evidence shows that virtually every U.S. entomologist whose name was mentioned during the trial has used these standard elements in field efficacy trials. E.g., DX 46 at 109 P C, 110 P E (Professor Roger Gold); PX 143 at 62 (1st and 2d paragraphs) (Professors Clyde Ogg and Roger Gold); DX 52 at 0056 (Dr. Shripat Kamble); DX 47 at 0027 (Dr. Philip Koehler); DX 44 at 2742 (Dr. William Robinson); DX 74 at 1156 (Dr. Arthur Appel).

  63. Furthermore, before Mr. Bieman developed the new Clorox protocol, Clorox used these same standard elements in its field efficacy trials (Bieman 1067/13-1068/12), as did Cyanamid before it. Id. Indeed, Mr. Bieman conducted 50 to 60 field tests using those elements as an employee of Cyanamid and Clorox. Id. Not surprisingly, Clorox has referred to these elements as "standard" or "established" in contemporaneous documents created before the commencement of litigation. PX 45; PX 53 (stating that the new method differs from "established, existing procedures"). And, when Mr. Bieman was asked why he continued using Cyanamid's testing methodology for seven years despite his alleged belief that the methodology flew in the face of label directions, he explained his thinking at that time: "Listen, I have been doing it for all those years, and everybody else is doing it for all these years. No one -- I mean, how is what I am doing any different from anyone else? This is supposedly the standard. . . ." Bieman 1068/22-1069/23 (emphasis added). See also Boase 1611/3-1612/19 (Standard elements are "common themes" used by researchers "throughout the USA.").

  64. Although never proffered as an expert, Mr. Bieman testified that in his view the standard elements are inconsistent with label directions. Bieman 1068/18-21. Even if he were correct, that would largely be beside the point, because this action does not involve a challenge to advertising claims made by SCJ based on its field testing results. However, the view espoused by Mr. Bieman in court is directly at odds with the pre-litigation position adopted by Dr. Silverman, Mr. Bieman's boss (Bieman 1132/12-14), who wrote that Clorox's previous method "followed label directions" and thus contrasts with Clorox's new protocol. PX 45; Silverman Dep. 78/12-13. Moreover, Clorox has itself relied on tests conducted by SCJ using these standard elements (see Clorox Pre-Hearing Br. at 16-18; DX 161), and Clorox's expert witness expressly declined to "condemn" as scientifically inappropriate field tests using these standard elements when offered the opportunity to do so by SCJ's counsel. Boase 1609/22 - 1610/23.

  65. In contrast to Mr. Bieman, Dr. Owens and Dr. Koehler each testified that field testing using these standard elements is faithful to product label directions. Owens 128/1-18; Koehler 852/8-25. This testimony is corroborated not only by Dr. Silverman's pre-litigation chart (PX 45), but also by the pre-litigation reports of other eminent U.S. entomologists having no connection with this litigation. See Reports of Dr. Gold (DX 46 at 110 ("Bait stations were placed in a manner . . . modeled after label recommendations.")) and Dr. Bennett (DX 55 at 174 (bait placements "based on the label recommendations")). Of course, the concessions of Messrs. Bieman (1067/20-1069/24) and Boase (1611/21-1612/23) that the standard elements have been consistently followed by U.S. entomologists is itself strong evidence that field testing following those elements is consistent with label directions. It is hardly credible to suggest, as Mr. Bieman apparently does, that the entire U.S. urban entomology community had adopted field testing procedures for OTC roach baits that were inconsistent with label directions for those packages.

  66. Furthermore, a simple comparison between the product labels on the one hand, and the standard elements respecting the number and placement of baits, on the other, proves that Drs. Owens and Koehler, and the rest of the U.S. entomology community, have every reason to conclude that the standard elements are consistent with product label recommendations. For example, use of 12 baits is consistent with the oft-repeated label recommendations to "use all 12 baits" for "thorough roach control." PX 16; PX 111. Although the labels recommend the use of additional baits for "heavy infestation," the level of infestation is in the eye of the beholder. As Dr. Koehler testified, low-income apartment residents often will not see large numbers of roaches even in apartments where thousands of roaches live behind the walls. Koehler 1386/22-1387/9. Moreover, Clorox field tests only in kitchens, see DX 17, while the packages recommend that in heavy infestations at least some of the additional baits be placed in rooms other than the kitchen. PX 16, 111; see PX 18 at 250 (Clorox placement guide showing placement of baits in bedroom, living room, etc.); Koehler 856/15-857/18. And, the record evidence indicates that consumers rarely apply more than 12 baits at a time. See supra P 41. Thus, although it might not be inappropriate to use up to 24 baits in a field test, the use of 12 baits per apartment can hardly be viewed as contrary to label directions.

  67. In like manner, while the placement of one bait station at each bait location is consistent with label recommendations, the use of multiple baits is not: nothing on the product labels even remotely instructs a consumer to place multiple baits at any, let alone all, locations. Koehler 871/17-872/3. Similarly, the placement of baits at the same or equivalent locations within each apartment closely adheres to label directions. Consumers are far less skilled than professional PCOs in locating cockroach harborages, especially in peripheral areas of a kitchen. See supra P 38. As a result, researchers implementing the standard elements will place the majority of baits in those areas designated as bait locations on label diagrams, while placing other baits in locations where consumers may be expected to see roaches. Owens 128/1-130/7. This approach harmonizes label language instructing consumers to place baits "where cockroaches are seen" with label diagrams designating the "Most Important" (PX 111) and "For best results" (PX 16) bait locations. Koehler 1374/6-16. *fn20"

  Repellency and Bait Shyness

  68. Clorox argued at length that one reason RAID Max Plus is, allegedly, an ineffective product is that Dursban is repellent and/or causes "bait shyness." Bait shyness refers to the preferential feeding habits of the cockroach caused by unpalatable bait, while repellency refers to the effect of the vapor phase of the active ingredient (Dursban) which causes roaches to stay away from the bait. Boase 1585-87.

  69. The Court agrees with Clorox's position that RAID Max Plus's active ingredient of Dursban produces roach repellency and bait shyness. The incidence of roach repellency, in fact, was acknowledged by SCJ's own scientists, in 1989, at the time that RAID Max was introduced with sulfluramid as its active ingredient. See DX 143 at 38 (quoting SCJ scientist Dr. Keith Kennedy as stating that "old style roach killers were roach-repellent . . . ."). Indeed, numerous studies by a variety of researchers, including SCJ employees, have concluded that Dursban has a problem of repellency. See DX 74 at 1154 (Appel study concludes that "Relative repellency . . . was greatest for chlorpyrifos formulations"); DX 75 (University of Nebraska study concludes that chlorpyrifos was repellent); DX 73 at 1285 (Dr. Koehler and others state that chlorpyrifos and certain other toxicants "are known to be low level repellents to cockroaches" and therefore less effective)).

  70. The issues of repellency and bait shyness, however, are not of themselves determinative of the parties' dispute. The Commercial does not make any claims about the inherent characteristics of SuperBait and RAID Max Plus, or why they are, or are not, effective. Instead, the Commercial makes explicit, numerical comparisons of the efficacy of those products that are allegedly based on testing. Thus, this case turns on whether or not the testing substantiates these claims, and not upon a qualitative analysis of the products' active ingredients to the extent that such analysis is collateral to the ultimate question of efficacy.

  71. A related issue that is potentially determinative of the parties' dispute is whether the effects of Dursban repellency and bait shyness are of sufficient magnitude as to nullify the prejudicial effects of Dursban resistance, which the Court has found not to be pervasive throughout the United States. See supra Findings of Fact PP 48-55. In this regard, the Court expressly finds that the repellent properties and bait shyness attributable to Dursban fail to nullify, in any material sense, the testing prejudice sustained by RAID Max Plus through Clorox's failure to take into consideration the non-pervasive nature of Dursban resistance throughout the United States.

  The Volatility of Hydroprene and Clorox's Failure to Consider the 80% Reduction in Roach Population Achieved by Regular RAID in the First Laboratory Test

  72. As noted above, in the First Laboratory Test, Regular RAID (with Dursban but without Egg Stoppers) killed 80% of the roaches, while RAID Max Plus (with Dursban and with Egg Stoppers) killed 60%. See supra Findings of Fact P 23. Plaintiff SCJ claims that Regular RAID's performance in this test should not have been disregarded by Clorox. Clorox, in turn, contends that it correctly disregarded the results for Regular RAID in making a claim about RAID Max Plus because they are different products that could perform differently.

  73. In their post-hearing briefs, the parties direct considerable attention to the testimony of Dr. Koehler, one of SCJ's witnesses. In his testimony, Dr. Koehler offered a possible explanation for the disparity in the results between regular RAID and RAID Max Plus: in studies conducted by him, the active ingredient in hydroprene has been shown to impair the toxicity of Dursban in heavy concentrations but to enhance its toxicity in low concentrations. Koehler 888/13-889/10. While the plaintiff contends that Dr. Koehler's reasoning should be adopted by the Court to suggest that the results in the First Laboratory Test concerning regular RAID undermine the reliability of Clorox's "no more than 60%" claim, defendant Clorox asserts that Dr. Koehler's testimony is scientifically invalid because he testified that hydroprene "is not very volatile at all," Koehler 1411, and that it spread by a process of sublimation, which he presented as akin to crawling across a surface. Id. According to the defendant, this testimony is contradicted by SCJ's internal marketing documents, the published scientific literature, the dictionary definition of the chemical process of sublimation, and SCJ's own field tests of hydroprene conducted by well-respected urban entomologists. (Koehler Trial Tr. 1414-16; Boase Trial Tr. 1517-18; DX 71 at 1365 ["Hydroprene's LC Vapor-phase activity", DX 46 at 111 ("high volatility of hydroprene"); PX 18 at 269 ("hydroprene is an acyclic sesquiterpenoid . . . . acyclic sesquiterpenoids are volatile and breakdown in ultraviolet light."). SCJ further argues that, at the time that the First Laboratory Test was conducted, Clorox had no way of knowing whether hydroprene would in fact affect the results and, if it did, the extent or direction of the effect of hydroprene from an Eggstoppers dispenser.

  74. Upon considering the evidence, the Court finds that the 80% kill rate achieved by Regular RAID in the First Laboratory Test substantially undermines the defendant's claim that RAID Max Plus kills "no more than 60%" of consumers' roaches. As previously discussed, see supra Findings of Fact P 7, RAID Max Plus is actually two products contained in one package. It consists of (a) 12 roach baits and (b) 3 small containers of the insect growth regulator Hydroprene. The hydroprene merely sterilizes certain roaches that come in contact with it. Owens 335/9-336/9; Koehler 887/4-888/17; PX 101, 125.

  75. The Court observes, as a preliminary matter, that the record does in fact support the proposition that exposure to hydroprene negatively impacts upon roaches's susceptibility to chlorpyrifos (i.e., Dursban). This result obtains because sterilization causes their body mass to increase, and thereby presumably increases their ability to survive exposure to lesser amounts of poison. See PX 101 at 2315. Nevertheless, Clorox's own internal document, which was prepared to provide support for the original version of the Commercial, states that "it takes 1-6 months for hydroprene to start controlling roaches. The effect of [hydroprene is to] render[] exposed females sterile. Therefore, [RAID Max Plus] takes longer than [Combat SuperBait] to see effectiveness in controlling roaches." PX 19 at 3872 P 3. In view of these circumstances, the Court finds that the 80% result achieved by Regular RAID in the First Laboratory Test provides circumstantial evidence supporting the inference that had the First Laboratory Test been allowed to proceed for a period in excess of 20 days, the effects of the hydroprene component in RAID Max Plus eventually would have become operative, with the result that aggregate roach mortality would have increased beyond the 60% cap articulated in the Commercial. Thus, inasmuch as Clorox's own documentation strongly suggests that the 20-day duration of the First Laboratory Test did not provide enough time for hydroprene to begin controlling roaches, see PX 19 at 3872 P 3, the Court regard this 20-day cutoff to constitute an uncompensated disadvantage to RAID Max Plus, that skewed the results of this test unfairly against it.

  76. Correlatively, the Court finds that other evidence in the record independently impels the conclusion that the 20-day cutoff in the First Laboratory Test unfairly prejudiced RAID Max Plus. Specifically, in an inter-office correspondence from Maria Ochomogo, a Clorox scientist, to Mark Adams, concerning technical support for the Weapon Commercial, Dr. Ochomogo notes that complex arena tests are ordinarily assessed over periods between 1 day to 4 weeks. PX 28 at 3974. The rationale provided in this correspondence for the shorter period of time employed for a laboratory test as compared to a field test was that in a laboratory test, because the number of roaches is fixed, the test properly should end when all roaches that are likely to die have indeed died. PX 28 at 3974. The failure to use the outer duration of 4 weeks is especially unwarranted in this case -- in which an absolute claim that RAID Max Plus kills "no more than 60%" of the roaches has been made -- because at the time of the 20-day cutoff, there was little support for an unqualified conclusion that all roaches that would have been killed by RAID Max Plus in fact had died. Indeed, the basis for this conclusion is undermined by Dr. Ochomogo's acknowledgment that laboratory tests can take up to 4 weeks, or 28 days. See PX 28 at 3974.

  SCJ's Decision Not to Conduct its Own Field Test

  77. Clorox contends that SCJ should have conducted its own field test of SuperBait versus RAID Max Plus. SCJ did, however, cause such a test to be conducted by Dr. Gold, which was reported upon to SCJ in April 1994. PX 70. As Dr. Owens testified without contradiction, SCJ did not become aware of Clorox's contention that the Gold test involved the glucose version of SuperBait until late September or early October 1995. Owens 477/25-479/20. Thus, even if a location for the test could have been found very quickly -- and Mr. Bieman admitted that finding appropriate sites is a major problem (Bieman 993/22-994/18) -- the test would have been ongoing in December 1995 and January 1996. Putting aside that such a test thus would have been completed and reported on after expert discovery was over under Magistrate Judge Lindsay's discovery orders and would likely have further delayed the hearing, Clorox, despite having provided evidence of SCJ's past testing history, fails to persuade the Court that those months were optimal times for conducting field tests in the United States. Indeed, Mr. Bieman conceded this very point. Bieman 1074/10-1076/15; Owens 479/21-481/20.

  Additional SCJ Tests

  78. Defendant Clorox asserts that certain field tests commissioned by SCJ showed results for the two products that are comparable to those claimed by Clorox in the Commercial. A test performed under the SCJ protocol in Omaha, Nebraska in 1990-1991 found that at the twelfth week Maxforce (which is the same product as the old regular COMBAT(R)) achieved a 92% mean kill, while RAID Roach Controller, a Dursban bait product, achieved only 42%. DX 52 at 61. A test performed in Orlando, Florida in 1994, with SuperBait and RAID Max Plus with sulfluramid included an experiment in a smaller number of apartments using 24 bait stations for each product. Although, it was not a full-fledged, replicated test, the defendant contends that it supports the reliability of the Clorox tests by showing that SuperBait achieved a 95% mean kill rate versus 52% for RAID Max Plus with sulfluramid. DX 45.

  79. Moreover, the reliability of Clorox's test results for the RAID Dursban product is supported by similar results for Dursban baits in tests performed for SCJ, including tests by Dr. Koehler. As shown below, Dursban roach baits never achieved better than a 60% mean kill in any test performed in this country since 1991: Mean Percent Kill Ex. Test location and Coordi- RAID(R) year nator Dursban roach bait DX44 Roanoke, Va. (1995) William 37.96% Robinson DX46 Houston, Texas Roger Gold - 64.3% (1993) DX49 Gainesville, Fla. Philip 48.71% (1992) Koehler DX53 Gainesville, Fla. Philip 20.5% (1991) Koehler DX52 Omaha, Neb. (1991) Shripat 42.12% Kamble DX61 Torrance, Cal. Donald 35.8% (1991) Reierson DX50 Gary, Ind. (1991) Gary Bennett 46% DX50 Texas (1991) Roger Gold 35.6%


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