P&G Comes Out Sparkling White As Judge Dismisses Colgate’s Complaint

Colgate's contention that Procter & Gamble's ads implied Colgate Simply White and Simply White Night are ineffective because they wash away failed to convince a federal jury that found in favor of P&G.

In particular, Colgate's lack of a consumer survey showing that people actually took the alleged implication from the ads appeared to resonate with the jury.

The judge did not award damages after the jury determined the Cincinnati-based firm's ads did not denigrate Colgate's whitening products. The case was decided July 30 in New York Southern District Court; the suit was first filed in November 2003.

The necessity of a consumer study was one of several points of contention between the two firms. At issue were P&G claims that Crest whitening products are five and two times more effective than Colgate's paint-on offerings; that Simply White and the nighttime product wash away and therefore are less effective; and that overall, promotional spots imply that Colgate products do not work at all.

Defendant P&G maintains the Lanham Act requires a "'threshold showing'...by a plaintiff [that] 'a not insubstantial number of consumers hold the false belief allegedly communicated in the ad.'"

Thus, P&G maintains a consumer survey is crucial to disprove Colgate's claim that P&G's implied message in Crest Whitestrips and Night Effects ads is that Simply White and its night counterpart do not work at all because they wash away.

"Generally speaking, courts require that at least 15% to 20% of the target audience take away the alleged implied message net of 'noise,' or pre-conceived notions for which an advertiser is not responsible," P&G says in a July 26 brief.

Only such a survey can include "sufficient indicia of reliability" with respect to whether consumers take away an implied claim, the brief states. Consequently, the P&G market research Colgate submitted as evidence instead of a study is an inadequate substitute, P&G adds.

However, Colgate points out in its July 22 brief that "courts have relied on varied forms of extrinsic evidence in order to find consumer confusion or deception as a result of an allegedly false advertisement."

Colgate cites P&G market research as proof of their assertion. The document states a particular television spot "appears to have delivered a tremendous set-back to Colgate Simply White's equity. When discussing this product with consumers, the overwhelming response is that it didn't work and many commented about the [ad's] copy."

The ad at issue is titled "Mumbles," and features a woman who has used paint-on whitener and cannot move her mouth for fear of removing the product. She says: "If I move my lips, my saliva will wash most of it away in two minutes...Wash away? How well can it whiten?"

The ad was the subject of a National Advertising Division review in Spring 2003. The watchdog group found P&G's superior whitening claim was substantiated, but the Colgate product was falsely disparaged (¹ (Also see "Crest Whitestrips Ad Comparison To Simply White Gets Mixed NAD Review" - Pink Sheet, 26 May, 2003.), p. 15).

Focus groups convened by P&G determined the "'main message' of Mumbles is that 'paint-ons don't work,'" Colgate states.

Another commercial troubling to Colgate was the "Deluge" spot, in which a product similar in appearance to Simply White appears to dissolve "to the sound of something going down a drain or toilet" at the same time a speaker says "after five minutes, most of it washes away."

The "Paint Tiles" commercial also was damaging, Colgate says, because it shows tiles with no difference after being treated by Simply White Night, while Crest Whitestrips-treated tiles show a dramatic contrast.

P&G's intention documents show Mumbles' project objective is to "place doubt in the mind of the consumer about Colgate Simply White. It does not noticeably whiten and therefore is not such a great value when compared to Crest Whitestrips," Colgate's brief says.

The Crest marketer disagrees the market research materials are appropriate to prove intention to denigrate its rival. "The cited research assess such factors as whether the ads are 'informative,' 'engaging' or 'entertaining,'" the firm points out.

"None asks 'what does the commercial say' or 'what does wash away mean to you?'- standard survey questions," they add.

Regarding the focus group's conclusion after watching Mumbles, P&G states the results are from "small-scale focus group work," and "it is axiomatic that focus groups cannot accurately reflect the perceptions of the target population as a whole."

"All these shortcomings in the market research cited by Colgate are precisely why courts require a competent litigation survey in implied falsity cases," P&G asserts.

Colgate also challenged claims that Crest Whitestrips and Night Effects whitened five and two times better than Simply White and Simply White Night, respectively.

Experts on behalf of Colgate testified that P&G's camera system "did not reliably measure" CEILAB measurement system values, the brief notes. The system is used to predict when colors, illuminated by the same light source, would be perceived as the same by human eyes.

"This inaccuracy is due, among other things, to the fact that the camera system uses a flawed mathematical equation to convert" values of whitening shades, and in fact, the "discrepancies between the two systems were actually quite large," Colgate continues.

The ratio claims are inaccurate even if the system were correct because they include only one part of a three-part equation necessary to compute the whitening value, Colgate's experts testified.

Most importantly, though, "the ratio claims do not correspond to visually perceptible differences that consumers would see between the whitening efficacy of the Colgate and Crest products," Colgate points out. The firm claims that even if the difference were visible to the untrained eye, the white value of the treated teeth would not come close to the "five times" difference designated by P&G.

In response, P&G says its advertising implies Colgate's products "are indeed effective, because five times and two times better than nothing would be nothing."

"The more reasonable takeaway from the P&G commercials," the Crest marketer states, "is that the Crest products work more effectively than the Colgate products."

Colgate had requested to be compensated for alleged losses encountered during the Crest Whitestrips and Night Effects campaigns as well as attorneys' fees; the request was denied.