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Wysong Corp. v. APN, Inc.

United States District Court, E.D. Michigan, Southern Division

July 20, 2017




         In these six actions, Plaintiff Wysong Corporation, a pet food manufacturer, claims that six of its alleged competitors engage in deceptive marketing practices. Wysong contends that the Defendants place on their pet food packaging images of “premium meats, poultry, fish, and vegetables” that “do not fairly represent the actual ingredients of the packages.” For the reasons explained below, Wysong's particular claims are not plausible, and Wysong is not entitled to further amend them. Accordingly, the Court grants Defendants' motions to dismiss and dismisses Wysong's Amended Complaints with prejudice and without leave to amend.


         Wysong is a Michigan-based pet food manufacturer. On May 23, 2016, Wysong filed six separate actions in the Northern Division of this Court alleging that six other pet food manufacturers - Mars Petcare US, Inc., APN, Inc., Big Heart Pet Brands/The J.M. Smucker Company, Hill's Pet Nutrition, Inc., Nestle Purina Petcare Company, and Wal-Mart Stores, Inc. (collectively, “Defendants”) - engage in similar deceptive marketing practices in violation of the Lanham Act, 15 U.S.C. § 1125(a). Wysong claimed that the Defendants place on their pet food packages false and/or misleading images of premium meats, poultry, fish, and vegetables.

         For docket efficiency, the actions were re-assigned to the Court's Southern Division as follows:

• Wysong Corp. v. APN, Inc., Civil Action No. 16-cv-11821, was assigned to Judge Matthew F. Leitman;
Wysong Corp. v. Big Heart Pet Brands/The J.M. Smucker Company, Civil Action No. 16-cv-11823, was assigned to Judge George C. Steeh;
Wysong Corp. v. Hill's Pet Nutrition, Inc., Civil Action No. 16-cv-11825, and Wysong Corp. v. Mars Petcare US, Inc., Civil Action No. 16-cv-11826, were assigned to Judge Terrence G. Berg;
Wysong Corp. v. Nestle Purina Petcare Company, Civil Action No. 16-cv-11827, was assigned to Judge Gershwin A. Drain; and
Wysong Corp. v. Wal-Mart Stores, Inc., Civil Action No. 16-cv-11832, was assigned to Judge David M. Lawson.

         By August 2, 2016, three of the Defendants - Mars, Wal-Mart, and APN - had moved to dismiss the Complaints under Rule 12(b)(6) of the Federal Rules of Civil Procedure. There was substantial overlap between those motions. The remaining Defendants indicated that they also intended to file similar motions. Given the considerable similarity between Wysong's claims in the various actions and between the pending and planned motions to dismiss, the assigned Judges determined that the actions should be re-assigned to a single Judge, the undersigned, for the purpose of addressing all motions under Rules 12(b)(6) and 12(c). (See ECF #11.[1])

         After the actions were re-assigned, the Court convened a telephone conference with all counsel. (See ECF #12.) During that conference, the Court directed counsel to meet and confer regarding Defendants' assertions that Wysong's claims were deficient. The Court instructed Defendants' counsel to explain their arguments concerning the alleged deficiencies, and the Court provided Wysong an opportunity to cure the identified deficiencies by filing an Amended Complaint in each action. (See ECF #13 at Pg. ID 256.) Wysong filed its Amended Complaints on September 21, 2016.



         Wysong asserts a single claim in its Amended Complaints: that the Defendants have violated (and continue to violate) the Lanham Act by placing on their pet food packaging images of “premium meats, poultry, fish and vegetables” that “do not fairly represent the actual ingredients of the packages.”[2] (Am. Compl, ECF #14 at Pg. ID 260.) Wysong offers three theories as to how these images render Defendants' packaging false and/or misleading:

. The “Premium Grade” Theory: Wysong alleges that Defendants' packaging is false and/or misleading because it depicts images of “premium cuts of beef, chicken, lamb, fish, or other animal ingredients” - 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.”[3] (Id. at ¶¶ 9, 14, ECF #14 at Pg. ID 264, 266-67.) Wysong asserts this “premium grade” theory of falsity and deception against all of the Defendants.
. The “Primary Species” Theory: Wysong alleges that the packaging used by Defendants Mars, Nestle, and Big Heart is false and/or misleading because it depicts 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.” (Id. at ¶17(B), ECF #14 at Pg. ID 271.)
. The “By-Product” Theory: Wysong asserts that the packaging used by Defendants Mars, Nestle, and Big Heart is false and/or misleading because it depicts images of “premium cuts of chicken, beef, lamb, or fish” even though the actual “primary animal ingredient is a low cost and low grade animal ‘byproduct' … derived from the cheapest part of the animal” - such “as stomachs, intestines, bone, [and] blood.” (Id. at ¶17(A), ECF #14 at Pg. ID 269.)

         Wysong says that “Defendants'] false representations [described above] play upon the natural inclination among pet caretakers to purchase the highest quality, premium foods that are in accordance with their own sensibilities.” (Id. at ¶11, ECF #14 at Pg. ID 265.) In particular, Wysong contends that “premium ingredient pictures on packages … exert a [] strong influence over purchasers' decisions” because “pet food consumers place a higher value on pet food that they perceive as having ingredients like those they would purchase and cook for their families. They believe that such foods are better than other foods that do not have that appearance.” (Id. at ¶¶ 8-9, ECF #14 at Pg. ID 263-64.) Wysong insists that Defendants' use of these images of premium ingredients unfairly disadvantages Wysong in the pet food marketplace:

When deciding between [Defendants' pet food] and Wysong[‘s pet food], many consumers choose [Defendants'] products because the pictures [on Defendants' packaging] deceptively suggest that [Defendants'] products contain higher cost and quality ingredients, while Wysong products are presented to pet owners without such deceptive pictures.

(Id. at ¶9, ECF #14 at Pg. ID 264.)


         Wysong makes no effort to explain how any particular image of a premium ingredient on any particular package is false and/or misleading in the context of the packaging as a whole. Instead, Wysong attaches to its Amended Complaints photographs of hundreds of Defendants' packages that contain images of premium ingredients (see, e.g., ECF ## 14-2 and 14-3), and Wysong broadly asserts that every image of a premium ingredient included on those packages is false and/or misleading in at least one of the three ways identified above. (See Am. Compl. at ¶14, ECF #14 at Pg. ID 266-67.)

         Notably, the characteristics of the premium-ingredient images featured in Wysong's attachments and the context in which those images appear vary widely. Some of the packaging depicts large images of premium ingredients[4]; other packaging depicts much smaller images.[5] Some of the packaging depicts images of premium ingredients that are centrally or prominently located[6]; other packaging depicts such images tucked away in a bottom corner.[7] Some of the packaging contains words or names that highlight or identify the depicted premium ingredients[8]; other packaging does not.[9] Some of the packaging depicts a single image of a premium ingredient[10]; other packaging depicts multiple images of premium ingredients.[11] Some products are sold in large bags[12]; others are sold in small cans.[13]

         Wysong says nothing about how or whether the images' differing contexts and characteristics affect the alleged falsity and/or misleading nature of Defendants' packaging.[14] Indeed, Wysong alleges that these widely varying images of premium ingredients in widely varying contexts all deliver the same message and deceive in the same way - by leading the consumer to believe that the product contains premium ingredients. (See Am. Compl. at ¶¶ 9, 14, ECF #14 at Pg. ID 264, 267-68.) Wysong's theory of the case thus effectively treats the context and nature of the images as immaterial to their alleged deceptiveness.


         Defendants filed their motions to dismiss the Amended Complaints on October 21, 2016. (See ECF #15.) Defendant Mars filed a “lead” brief addressing issues common to all Defendants. (See id.) Every other Defendant then filed a “supplemental” brief. In the motions, Defendants argue that the Amended Complaints fail to plausibly assert a claim under the Lanham Act. Wysong filed a single consolidated response to all of the motions on November 21, 2016. (See ECF #16.) The Court held a hearing on the motions on February 1, 2017.


         Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6). “To survive a motion to dismiss” under that rule, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a plaintiff pleads factual content that permits a court to reasonably infer that the defendant is liable for the alleged misconduct. See id. When assessing the sufficiency of a plaintiff's claim, a district court must accept all of a complaint's factual allegations as true. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). “Mere conclusions, ” however, “are not entitled to the assumption of truth. While legal conclusions can provide the complaint's framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664. A plaintiff must therefore provide “more than labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action” to survive a motion to dismiss. Twombly, 550 U.S. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.



         Wysong brings its deceptive marketing claims under Section 43(a) of the Lanham Act. That section provides, in relevant part, that:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1) and (a)(1)(B).

         To state a cause of action for false or misleading advertising under Section 43(a) of the Lanham Act, a plaintiff must establish the following:

1) the defendant has made false or misleading statements of fact concerning his own product or another's; 2) the statement actually or tends to deceive a substantial portion of the intended audience; 3) the statement is material in that it will likely influence the deceived consumer's purchasing decisions; 4) the advertisements were introduced into interstate commerce; and 5) there is some causal link between the challenged statements and harm to the plaintiff.

American Council of Certified Podiatric Physicians and Surgeons v. American Bd. of Podiatric Surgery, Inc., 185 F.3d 606, 613 (6th Cir. 1999); Herman Miller, Inc. v. Palazzetti Imports and Exports, Inc., 270 F.3d 298, 323 (6th Cir. 2001) (same).

         A plaintiff may satisfy the first element of its Lanham Act claim - that a defendant “has made false or misleading statements of fact concerning his own product” - in one of two ways. First, the plaintiff may demonstrate that the challenged statements are “literally false.” Certified Podiatric Physicians, 185 F.3d at 614. “Where statements are literally false, a violation may be established without evidence that the statements actually misled consumers. Actual deception is presumed.” Id. (internal citations omitted).

         In the alternative, the plaintiff may show that the statements are “true yet misleading or confusing.” Id. “Where statements are literally true, yet deceptive, or too ambiguous to support a finding of literal falsity, a violation can only be established by proof of actual deception (i.e., evidence that individual consumers perceived the advertisement in a way that misled them about the [] product).” Id.

         Here, Wysong insists that the images of premium ingredients on Defendants' pet food packages are literally false and/or that they are misleading. The Court will first analyze whether Wysong has plausibly alleged that the images are literally false under any of the three theories identified above (i.e., the “premium grade, ” “primary species, ” and “by-product” theories). The Court will then analyze whether ...

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