Wysong Corp. v. APN, Inc., Nos. 16-11823, 16-11825, 16-11826, 16-11827, 16-11832 (E.D. Mich. Jul. 20, 2017)
Wysong, a pet food manufacturer, sued six competitors, alleging that their packages used images of “premium meats, poultry, fish, and vegetables” that “do not fairly represent the actual ingredients of the packages.” The court dismissed the complaint without further leave to amend.
Wysong offered three theories of falsity/deceptiveness: (1) Defendants’ packaging used images of “premium cuts” such as “lamb chops, chicken breasts, [ ] steak, or salmon fillets” that consumers “would feed [their] famil[ies],” when, in fact, the food is actually made of the “lower cost parts of the animal left over after all the parts a human finds appetizing have been removed.” (2) Some pacakging used images of “premium cuts from a particular animal when the primary animal ingredient in the product is not only of a lower cost, it is from a completely different species of animal.” (3) Some packaging used images of premium cuts even though the actual “primary animal ingredient is a low cost and low grade animal ‘by-product’ … derived from the cheapest part of the animal” – such “as stomachs, intestines, bone, [and] blood.” These misrepresentations allegedly manipulated “the natural inclination among pet caretakers to purchase the highest quality, premium foods that are in accordance with their own sensibilities.”
However, the court concluded that Wysong didn’t explain how any particular image was false or misleading in context, but just attached photos of hundreds of defendants’ packages to its complaint and broadly alleged that every image was false and/or misleading in at least one of the three ways identified above. But the packages varied widely: Some used large images of premium ingredients, while others used smaller images; some put premium ingredients in the center, while others tucked the images in a bottom corner; some used words or names that highlighted or identified the depicted premium ingredients while others didn’t; some depicted a single image of a premium ingredient, while some used more than one; some came in large bags, others in small cans.
The court found that the images weren’t literally false. An image of a premium ingredient on a pet food package, standing alone, didn’t “unambiguously,” “necessarily,” and “unavoidably,” convey that the food in the package contained the exact cut or grade of the ingredient pictured, because a reasonable consumer could understand the image as merely identifying the type of ingredients in the product.
Likewise, it is possible that consumers viewing Defendants’ packaging would understand that the images of premium ingredients on Defendants’ packages are for “identification purposes only” and are used to help consumers determine the types of meats, poultry, fish, and/or vegetables included in, or the flavors of, the pet food they are purchasing. Thus, as in Scotts Co., Wysong’s literal falsity claim fails. So too with the “primary species” theory—an image of an animal doesn’t unambiguously communicate that meat from that animal is the primary animal ingredient. And so too with the animal by-product theory.
Although misleadingness is often a question of fact, it can also be resolved on a motion to dismiss where appropriate. The court found Wysong’s theories deficient because they didn’t account for context. The court found it implausible that every image of a premium ingredient – no matter its characteristics or context – conveyed the same misleading message about the product’s contents. By contrast, complaints about food packaging that survived a motion to dismiss provided details about specific images, their placement on the packaging, their relationship to the product names/slogans/verbal claims/other advertising, etc.
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