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Scotts renews litigation against rival

The Scotts Co. has resumed litigation against rival grass seed firm Pennington over alleged false ads.
Mateusz Perkowski

Capital Press

Published on April 15, 2014 3:37PM

The Scotts Co. has renewed litigation seeking to block rival grass seed marketer Pennington from running what it claims are misleading advertisements.

The garden products company has asked a federal judge to permanently enjoin its competitor from touting root comparison tests it claims were discredited.

The complaint alleges that Pennington “has engaged in a malicious campaign of unfair competition to destroy Scotts’ reputation” by publicizing the invalid tests.

Pennington has been airing television spots that depict hands lifting two trays of grass by their growing shoots, the complaint said.

The grass grown from Pennington’s “1 Step Complete” seed mix remains intact as the tray is lifted, but the grass grown from Scotts’ “EZ Seed” product tears out by the roots, the complaint said.

Scotts claims this test result is misleading because the EZ Seed mix was applied contrary to the directions for the product.

In the test, the EZ Seed product — which consists of seed, mulch and fertilizer — was applied at an excessive rate, making it appear as if the roots failed to penetrate the soil, according to Scotts.

An attorney for Penningtons said he could not comment on the litigation and Capital Press was unable to reach a company spokesperson as of press time.

The new lawsuit comes on the heels of previous court case in which Scotts successfully defended itself against Pennington’s false advertising claims.

Earlier this year, U.S. District Judge James Spencer found that the “lift tests” were based on “obsolete directions” but declared the matter moot because Pennington agreed to discontinue the ads.

In the new lawsuit, Scotts claims that Pennington has used images and footage from the discredited tests on television and in store product displays.

For example, the judge held that Pennington did not mislead consumers by calling itself an “honest” company, since these are subjective claims that “amount to puffery.”

Spencer refuted Pennington’s claims, such as its objection to statements that Scotts’ EZ Seed takes up and retains water better than 1 Step Complete.

“The overwheling weight of evidence, including Scotts’ internal testing and Pennington’s own internal documents, demonstrate that EZ Seed unquestionably absorbs water better than 1 Step Complete,” the judge said.

In an earlier ruling, the judge also rejected Pennington’s complaint that its mulch component was derided by Scotts as “a bunch of ground-up paper.”


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