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

Wysong Corp. v. APN, Inc. 2018 WL 2050449, -- F.3d – (6^th 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.”