Showing good-looking cuts of meat is puffery for pet food

Wysong Corp. v. APN, Inc. 2018 WL 2050449, — F.3d – (6th
Cir. May 3, 2018)|
Wysong, which sells pet food, sued six competitors for
violating the Lanham Act through pictures like this one:

“The bag features a photograph of a delicious-looking lamb
chop—but Wysong says the kibble inside is actually made from the
less-than-appetizing ‘trimmings’ left over after the premium cuts of lamb are
sliced away. The
district court dismissed the claims
, and the court of appeals affirmed.
Wysong argued literal falsity because the photographs on the
packages told consumers the kibble was made from premium cuts of meat, when it was
actually made from the trimmings left over after the premium cuts are gone.  But this wasn’t unambiguously false—a
reasonable consumer could understand the images as indicating the type of
animal from which the food was made (e.g., chicken) but not the precise cut
used (e.g., chicken breast).
Without a survey, pleading misleadingness required facts
supporting “a plausible inference that the challenged advertisements in fact
misled a significant number of reasonable consumers.” The complaint alleged
that contemporary pet-food consumers prefer kibble made from fresh ingredients
like those they would feed their own families, and that the accused packaging
tricked those consumers into thinking their kibble was in fact made from such
ingredients. But context matters, and “reasonable consumers know that marketing
involves some level of exaggeration.”  A
reasonable consumer at a fast-food drive-through doesn’t expect that his
hamburdger will look just like the one pictured on the menu.  Likewise, without more facts, “it is not
plausible that reasonable consumers believe most of the (cheap) dog food they
encounter in the pet-food aisle is in fact made of the same sumptuous (and more
costly) ingredients they find a few aisles over in the people-food sections.”
Wysong responded that  some pet foods, such as Wysong’s, do contain
premium-quality ingredients. But Wysong failed to explain “how that fact
impacts consumer expectations. Are these premium sellers even known to the
Defendants’ intended audience? Do their products compete with the Defendants’,
or do they cater to a niche market? Are there obvious ways consumers can
distinguish between the Defendants’ products and the fancier brands?” The
ingredient lists’ effect on consumers also needed to be explained: many of the
packages listed animal “meal” or “by-product” as an ingredient. “And that
information certainly suggests that the kibble is not made entirely from
chicken breasts and lamb chops.” 
Ultimately, the relevant market and the products’ labeling are crucial
in evaluating plausibility, but Wysong said next to nothing about them. And
that is fatal here, since the puffery defense is such an obvious impediment to
Wysong’s success.”

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