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

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

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

Dead weeds in 1 day

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

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

visible results in 1 hour

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

Spruce works differently image

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

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

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

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

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

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

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

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

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

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

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

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

from Blogger http://tushnet.blogspot.com/2026/02/does-dead-weeds-in-1-day-mean-entire.html