Wysong Corporation v. Big Heart Pet Brands et al

Filing 27

OPINION AND ORDER Granting Defendants' 19 Motion to Dismiss. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WYSONG CORPORATION,
Plaintiff,
v.

Case No.

16-11821

APN, INCORPORATED,
Defendant.
_____________________________________/
WYSONG CORPORATION,
Plaintiff,
v.

Case No.

16-11823

BIG HEART PET BRANDS, and
JM SMUCKER COMPANY,
Defendants.
_____________________________________/
WYSONG CORPORATION,
Plaintiff,
v.

Case No.

16-11825

HILL’S PET NUTRITION, INCORPORATED,
Defendant.
_____________________________________/
WYSONG CORPORATION,
Plaintiff,
v.

Case No.

MARS PETCARE US, INCORPORATED,
Defendant.
_____________________________________/

1

16-11826

WYSONG CORPORATION,
Plaintiff,
v.

Case No.

16-11827

NESTLE PURINA PETCARE COMPANY,
Defendant.
_____________________________________/
WYSONG CORPORATION,
Plaintiff,
v.

Case No.

16-11832

WAL-MART STORES, INCORPORATED,
Defendant.
__________________________________________________________________/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS TO DISMISS
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.

2

I
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-cv11827, 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.

3

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.

1

Unless otherwise indicated, all of the Court’s citations to docket entries in this
Opinion and Order refer to the docket and filings in Wysong Corp. v. Mars Petcare
US, Inc., Civil Action No. 16-cv-11826. The Mars action is representative of the
actions brought against all of the Defendants, and the Court took the same procedural
steps in all of the actions.
4

II
A
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.)

2

As described further below, some of Defendants’ products at issue are sold in
packaged bags while other products are sold in labeled cans. Wysong alleges that
both the packaging and labels include misleading images of “premium” ingredients.
For ease of reference, the Court will refer to the packaging and the labels collectively
as “packaging.”
3

Wysong likewise alleges that all of the Defendants place images of “premium fruits
and vegetables” on their pet food packages even though the “actual fruits and
vegetables used in [Defendants’] pet food products … typically bear no resemblance
to [the] images [Defendants’] place[] on [their] pet food products.” (Am. Compl. at
¶18, ECF #14 at Pg. ID 272.)
5

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 “Defendant[s’] 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.”
6

(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.)
B
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.

7

Some of the packaging depicts large images of premium ingredients4; other
packaging depicts much smaller images.5 Some of the packaging depicts images of
premium ingredients that are centrally or prominently located6; 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
ingredients8; other packaging does not.9 Some of the packaging depicts a single
image of a premium ingredient10; other packaging depicts multiple images of
premium ingredients.11 Some products are sold in large bags12; others are sold in
small cans.13

4

See, e.g., image of “Iams Healthy Naturals with Lamb + Rice,” ECF #14-2 at Pg.
ID 282.
5
See, e.g., image of “Nutro Seasonal Fish & Potato Recipe,” ECF #14-2 at Pg. ID
329.
6
See, e.g., image of “Iams Grain Free Naturals with Salmon + Red Lentil,” ECF
#14-2 at Pg. ID 304.
7
See, e.g., image of “Iams Proactive Health Minichunks,” ECF #14-2 at Pg. ID 284.
8
See, e.g., image of “Nutro Tender Chicken & Rice Recipe,” ECF #14-2 at Pg. ID
358.
9
See, e.g., image of “Iams Proactive Health Smart Puppy,” ECF #14-2 at Pg. ID
288.
10
See, e.g., image of “Iams Proactive Health Adult Chunks,” ECF #14-2 at Pg. ID
287.
11
See, e.g., image of “Iams Healthy Naturals with Lamb + Rice,” ECF #14-2 at Pg.
ID 282.
12
See, e.g., image of “Iams Proactive Health Mature Adult,” ECF #14-2 at Pg. ID
291.
13
See, e.g., image of “Iams Premium Puppy Food with Chicken & Beef in Gravy,”
ECF #14-2 at Pg. ID 301.
8

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.
III
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.

14

Wysong does allege that “[i]n many instances the photograph [of the premium
ingredient] is placed on the package next to a photograph of the finished processed
[ingredient] to convey equivalency.” (Am. Compl. at ¶10, ECF #14 at Pg. ID 26465.) But Wysong does not identify any particular packaging that allegedly misleads
consumers in this way, nor does Wysong explain how this is misleading in the
context of the entire package and in light of the characteristics of the images in
question.
9

IV
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.

10

V
A
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.
11

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 Wysong
12

has plausibly alleged that the images, even if not literally false, are misleading under
any of its three theories.
B
When “analyzing whether an advertisement or product name is literally false,
a court must determine, first, the unambiguous claims made by the advertisement or
product name, and second, whether those claims are false.” Novartis Consumer
Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586
(3d Cir. 2002). “[O]nly an unambiguous message can be literally false.” Innovation
Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 737 (6th Cir. 2012) (quoting Novartis,
290 F.3d at 587) (emphasis in Novartis). Indeed, “[t]he greater the degree to which
a message relies upon the viewer or consumer to integrate its components and draw
the apparent conclusion ... the less likely it is that a finding of literal falsity will be
supported.” Id. at 736 (quoting Novartis, 290 F.3d at 587). Finally, in evaluating a
claim of literal falsity, a court must determine whether the allegedly false message
“will necessarily and unavoidably be received by the consumer.” Novartis, 290 F.3d
at 588 (emphasis added). For the reasons explained below, none of Wysong’s three
theories state a plausible literal falsity claim.
1
Wysong’s “premium grade” theory does not state a plausible literal falsity
claim. That theory rests upon Wysong’s assertion that “[a] picture of a lamb chop,

13

or chicken breast, [] steak, or salmon fillets is a representation that the food in the
package contains lamb chops, chicken breasts, steak, or salmon fillets.” (Am.
Compl. at ¶9, ECF #14 at Pg. ID 264.)
But an image of a premium ingredient on a package of pet food, standing
alone, does not “unambiguously,” “necessarily,” and “unavoidably,” Novartis, 290
F.3d at 586, 588, convey that the food in the package contains the exact cut or grade
of the ingredient pictured. A reasonable consumer could view such an image as
merely identifying the type of ingredients that are included in the package. For
instance, a picture of a lamb chop or a chicken breast on a pet food package could
reasonably be interpreted as a shorthand representation that the package contains
lamb meat or chicken meat, respectively, rather than lamb chops and chicken breasts
specifically. These images could also reasonably be interpreted as representing the
flavor of the food inside the package. Simply put, the challenged images, standing
alone, do not necessarily and unambiguously convey that the food contains any
particular premium ingredient, and thus Wysong’s “premium grade” theory does not
state a viable literal falsity claim.
In Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002), the United
States Court of Appeals for the Fourth Circuit reached a similar conclusion in a case
involving allegedly misleading images on a product package. In Scotts Co., the
defendant used an “illustration of a mature crabgrass plant” on the package of a

14

product intended to control crabgrass, but not mature crabgrass. Id. at 270. The
plaintiff argued that the packaging “falsely suggested that [the product] could kill
mature crabgrass.” Id. at 270. The Fourth Circuit disagreed, holding that while the
image in question could be interpreted in the way plaintiff suggested, that was not
the only interpretation:
While it is possible that some consumers would interpret
the graphic in the manner [plaintiff] suggests, it is likewise
possible that consumers would understand the illustration
as showing mature crabgrass for identification purposes
only, so that they can determine whether the weed that is
vexing them is crabgrass or some other backyard pest.
Because the graphic can reasonably be understood as
conveying different messages, [plaintiffs’] literal falsity
argument must fail.
Id. at 275 (emphasis added).
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.
2
Wysong’s “primary species” theory also does not state a viable literal falsity
claim. As described above, in that theory Wysong claims that certain images are
literally false because they “depict cuts from a particular animal when the primary

15

animal ingredient in the product is not only of a lower cost, it is from a completely
different species of animal altogether.” (Am. Compl. at ¶17(B), ECF #14 at Pg. ID
270.) This theory rests upon Wysong’s contention that the mere image of meat from
a particular animal on a pet food package unambiguously communicates that meat
from that animal is the “primary” animal ingredient in the food.
That is not necessarily so. An image of a cut of meat from a particular animal
on a package, standing alone, may reasonably be understood to communicate, among
other things, that the food contains some meat from that animal – not necessarily that
that meat is the primary animal ingredient. Such an image may also communicate
that the food has a certain flavor.

Because there are alternative, reasonable

interpretations of the challenged images, Wysong’s “primary species” literal falsity
claim fails as a matter of law.
The federal court in Sensible Foods, LLC v. World Gourmet, Inc., 2012 WL
566304 (N.D. Cal. Feb. 21, 2012), rejected a similar literal falsity claim. In that
case, the plaintiff alleged that the defendant violated the Lanham Act by “using the
word apple in the name of its Apple Straws product when in fact that product is
primarily a potato product.” Id. at *6 (internal quotation marks omitted). The court
held that the inclusion of the word “apple” in the product’s name was not literally
false because, even though apples were not the primary ingredient, “the product
contain[ed] pureed apples.” Id. Here, too, the challenged images are not literally

16

false because even if the depicted meats are not the primary ingredients in the food,
those meats are nonetheless present.15
3
Finally, Wysong’s “by-product” theory does not state a plausible literal falsity
claim. In this theory, Wysong maintains that certain images are literally false
because they “depic[t] premium cuts of chicken, beef, lamb, or fish,” even though
the “primary animal ingredient” in the pet food is actually “a low cost and low grade
animal ‘by-product.’” (First. Am. Compl. at ¶¶ 17(A), ECF #14 at Pg. ID 269.)
This literal falsity theory fails for the same reasons that Wysong’s “premium
grade” and “primary species” literal falsity theories fail: namely, an image of a
premium cut of meat on a package of pet food, standing alone, does not necessarily
and unambiguously communicate that (1) the food contains any particular quality or
quantity of the pictured meat or (2) the food contains a greater percentage of the
pictured meat than by-product.

Once again, the image may reasonably be

understood to communicate that the food contains some amount of the pictured meat
or contains the flavor of the pictured meat. Moreover, because all of the pet foods
at issue contain at least some amount of the meat(s) depicted in the images on the

15

Wysong has not specifically identified any of Defendants’ packaging that depicts
a type of animal meat that is absent from the enclosed product.

17

packaging, the images are not literally false even if the percentage of by-product in
the foods exceeds the percentage of the depicted meat(s).16
C
In order to state a claim that an image is misleading in violation of the Lanham
Act, a plaintiff must plausibly allege that the image actually deceives, or has a
tendency to deceive, “a substantial portion of the intended audience.” Certified
Podiatric Physicians, 185 F.3d at 616 (internal emphasis removed). The alleged
deceptiveness of an image is analyzed under the “reasonable consumer” standard.
Pernod Ricard USA LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 250 (3d Cir. 2011)
(affirming dismissal of Lanham Act false advertising claim and holding that product
package “could not mislead any reasonable consumer”). Courts applying that
standard must rely on their “judicial experience,” Sensible Foods, 2012 WL 566304,
at *6, and their “common sense.” Pernod Ricard, 653 F.3d at 252 n.12. Finally,
when “determining whether a reasonable consumer would have been misled by a
particular advertisement, context is crucial.” Fink v. Time Warner Cable, 714 F.3d
739, 742 (2d Cir. 2013) (emphasis added).

16

At the hearing before the Court, Wysong’s counsel acknowledged that the
products that are the subject of the “by-product” theory do contain at least some of
the animal meat that is depicted on the packaging. (Wysong Corp. v. Nestle Purina
Petcare Co., Case No. 16-cv-11827 (E.D. Mich.), 2/1/17 Hearing Tr. at 29-30, ECF
#22 at Pg. ID 302.)
18

“[W]hether an advertisement is deceptive is generally a question of fact which
requires consideration and weighing of evidence from both sides and therefore
usually cannot be resolved through a motion to dismiss.” Blue Buffalo Co. Ltd. v.
Nestle Purina Petcare Co., 2016 WL 3227676, at *2 (E.D. Mo. June 13, 2016)
(emphasis added). “However, that is not to say that resolution of a false advertising
case on a motion to dismiss is always inappropriate. Courts will dismiss false
advertising and similar claims when, construing the factual allegations in the light
most favorable to the plaintiff, the challenged advertising statements would not
plausibly deceive a reasonable consumer.” Id. In fact, there is “ample case law
dismissing” false advertising claims in food packaging cases where the allegations
of deceptiveness are not plausible and/or defy common sense. Kacocha v. Nestle
Purina Petcare Company, 2016 WL 4367991, at *14 (S.D.N.Y. Aug. 12, 2016)
(collecting cases); Red v. Kraft Foods, Inc., 2012 WL 5504011, at *3 (C.D. Cal. Oct.
25, 2012) (compiling cases dismissing false advertising claims as a matter of law);
Manchouck v. Mondelez International, Inc., 2013 WL 5400285, at *2 (N.D. Cal.
Sept. 26, 2013) (noting that “numerous decisions [] have dismissed similar food
labeling claims at the pleading stage”).
For the reasons explained below, Wysong’s three theories of deception are
properly dismissed as a matter of law.

19

1
Wysong’s “premium grade” theory of deception is deficient because it does
not account for the characteristics or context of the particular images it claims are
misleading. As described above, instead of explaining or alleging how any particular
image on any specific package is misleading, Wysong attaches to its Amended
Complaints photos of hundreds of Defendants’ packages that contain widely varying
images of premium ingredients in markedly different contexts.

Wysong then

broadly contends that every image of a premium ingredient on every depicted
package, no matter its characteristics or context, would deceive a reasonable
consumer into believing that the enclosed food contains the pictured premium
ingredient.
That is not enough under the Lanham Act. A Lanham Act plaintiff has “the
burden of proving” that an allegedly misleading image on an advertisement “actually
deceives or tends to deceive in the overall context of the advertisement.” Charles E.
McKinney and George F. Long III, Federal Unfair Competition: Lanham Act 43(a)
6.11 (June 2017) (emphasis added).

Wysong’s “premium grade” theory fails

because it contains no specific allegations aimed at satisfying that burden. Instead,
the theory rests upon the notion that every image of a premium ingredient on
Defendants’ attached pet food packaging – no matter its characteristics or context –

20

conveys the same misleading message about the product’s contents. (See Am.
Compl. at ¶¶ 9, 14 ECF #14 at Pg. ID 264, 267-68.)
However, “context is crucial” to an assessment of whether an image is
deceptive, Fink, 714 F.3d at 742, and that is especially true with respect to an image
of a premium meat on pet food packaging. As explained above, such an image,
standing alone, could potentially communicate several different messages – e.g., that
the food contains the type of meat depicted (but not necessarily the same grade or
cut), that the food’s flavor matches the image, and, perhaps, that the food contains
the precise cut and grade of meat depicted. The context and character of the image
– its size, its color, its placement on the package, the surrounding images, its
relationship to the product’s name and other descriptive text on the package, etc. –
determines which of these messages (or others) the image may plausibly be
understood to convey. Thus, it was incumbent upon Wysong to include in its
Amended Complaints allegations showing how each image of a premium ingredient
underlying its claim, given its context and character, could plausibly be understood
to convey the meaning that Wysong attributes to it. Rather than including these
essential allegations, Wysong advances a theory that treats the context and
characteristics of the images as immaterial to their alleged deceptiveness.
Wysong’s own conduct in these actions demonstrates that the context of an
image is essential to the determination of whether the image is deceptive. Indeed,

21

Wysong treated a single image of a premium ingredient as deceptive in one context
but not in another.

Wysong did so in the process of amending its original

Complaints. When Wysong filed its Amended Complaints, it “eliminated dozens”
of packages that it had previously deemed misleading in its original Complaints.
(Wysong Corp. v. Nestle Purina Petcare Co., Case No. 16-cv-11827 (E.D. Mich.),
2/1/17 Hearing Tr. at 108-09, ECF #22 at Pg. ID 461-62.) Many of the deleted
packages include images of premium ingredients that are nearly identical to images
on packages that Wysong continues to attack as misleading in its Amended
Complaints.17 Wysong nonetheless made the “legal judgment” that the deleted
packages “didn’t really fit with [its] theory.” (Id. at 109, Pg. ID 463.) Wysong’s

17

Below is one example of Wysong drawing different conclusions about the
deceptiveness of essentially the same image of a premium ingredient in two different
contexts. Other examples are reflected in Appendix One to this Opinion and Order.
DELETED FROM ORIGINAL
COMPLAINT BECAUSE IT “DIDN’T
FIT WITH [WYSONG’S] THEORY”

LEFT IN AMENDED COMPLAINT AS
REPRESENTATIVE OF WYSONG’S
“THEORY”

Purina Beneful Prepared Meals Chicken Stew
(Wysong Corp. v. Nestle Purina Petcare
Company, Civil Action No. 16-11827, ECF
#4 at Pg. ID 73.)

Purina Beneful Prepared Meals Simmered
Chicken Medley
(Wysong Corp. v. Nestle Purina Petcare
Company, Civil Action No. 16-11827, ECF #4
at Pg. ID 74; ECF #16-2 at Pg. ID 190.)

22

“judgment” implicitly acknowledges that whether an image of a premium ingredient
on a pet food package is deceptive depends upon the context and characteristics of
the image.18
That is precisely why a claim under Wysong’s “premium grade” theory is
plausible only if it contains specific allegations showing how the image is misleading
in light of its context and characteristics. (See Section VI below for an extended
analysis of analogous claims against pet food producers that have been deemed
plausible because they contain detailed allegations concerning context and
characteristics.) Wysong’s “premium grade” theory fails because it lacks those
allegations – and, just as importantly, because it treats the essential issues of context
and characteristics as immaterial.19

18

While Wysong’s litigation conduct evidences its recognition that context matters,
Wysong does not account for context in the Amended Complaints – whose
allegations the Court reviews here – and, instead, it advances a theory that treats
context as immaterial.
19

While Wysong does attach photographs of Defendants’ packages that include the
allegedly-misleading images of premium ingredients, that attachment is no
substitute for specific allegations explaining how the characteristics and contexts of
the images cause deception. As described above, Wysong attaches hundreds of
photographs of allegedly-deceptive images in widely varying forms and
substantially differing contexts. Wysong does not fulfill its pleading obligations by
attaching such a large collection of images and leaving it to the Court to determine
– without any image-specific guidance from Wysong – which aspects of the images’
characteristics and contexts, if any, render them misleading. Moreover, as described
in detail above, the flaw in Wysong’s pleading is not merely the absence of
allegations concerning context and characteristics, but, also, that the theory treats
those matters as immaterial to the deceptiveness of the images.
23

2
As with Wysong’s “premium ingredient” theory of deception, its “primary
species” theory of deception fails because it does not account for the context and
character of the allegedly-misleading images and, instead, treats those matters as
immaterial. Once again, an image of a type of meat on a pet food package could
convey a number of messages, and it was incumbent upon Wysong to plead specific
allegations plausibly showing that each of the challenged images, given its context
and characteristics, could be understood to communicate that the pictured meat was
the primary animal ingredient. Wysong’s “primary ingredient” theory is deficient
because it lacks those essential allegations and rests upon the notion that the context
and characteristics of the images are immaterial to whether the images are deceptive.
3
Finally (and for all of the reasons explained in sub-sections 2 and 3 above),
Wysong’s “by-product” theory of deceptiveness fails because it does not account for
the context and characteristics of the allegedly-misleading images and treats those
matters as immaterial. Wysong did not allege how the challenged images, given
their contexts and characteristics, could plausibly be understood to convey that the
product contained more of the pictured meat than by-product.

24

VI
This Court is not the first to confront allegations that pet food manufacturers
have violated the Lanham Act or equivalent state-law false-advertising statutes
through allegedly-misleading depictions of certain desirable ingredients on their
packaging. The federal courts addressed such claims in Blue Buffalo Co. Ltd. v.
Nestle Purina Petcare Co., 2015 WL 3645262 (E.D. Mo. June 10, 2015) (“Blue
Buffalo I”); Blue Buffalo Co. Ltd. v. Nestle Purina Petcare Company, 2016 WL
3227676 (E.D. Mo. June 13, 2016) (“Blue Buffalo II”), and Kacocha v. Nestle
Purina Petcare Co., 2016 WL 4367991 (S.D.N.Y. Aug. 12, 2016). In each of those
decisions, the courts declined to dismiss some of the false-advertising claims at
issue. But both courts acknowledged that their decisions were not easy ones and that
some of the remaining claims only narrowly survived plausibility review.
As described in detail below, the allegations of deception that the courts
deemed sufficient in both Blue Buffalo decisions and in Kacocha were more detailed
and far stronger than Wysong’s allegations here. Most importantly, those allegations
specifically accounted for the context and characteristics of the images at issue. That
the far stronger allegations in those cases were close to the plausibility threshold
confirms that Wysong’s much weaker allegations, which do not specifically account
for context or characteristics, fall well below that threshold.

25

A
In Kacocha, the plaintiff alleged that the defendant “manufacture[d] and
deceptively and falsely market[ed] its popular ‘Beggin’ dog treat products as being
largely comprised of real bacon, when in reality, bacon [was] just a minor
ingredient.” (Kacocha Complaint at ¶1, Case No. 15-cv-5489 (S.D.N.Y.), Dkt. #1.20)
The plaintiff’s claim focused, in part, on the defendant’s packaging, and the plaintiff
provided substantial detail about the particular packaging and the context in which
images appeared on that packaging. For instance, the plaintiff claimed that the
packaging “prominently” featured images of “giant bacon strips” that were
particularly misleading to consumers. (Id. at ¶2.) The plaintiff also included in his
complaint a careful analysis of the entire package, as a whole:
Defendant’s false and misleading message is presented on
these [product display panels] which all consumers see
when they pick up the Beggin’ Strips package to buy or
use. For example, the 25 ounce bag of Beggin’ Strips
Original Bacon Flavor shows on the PDP a salivating dog,
20

The Court may take judicial notice of the allegations in the Kacocha pleadings
and of the allegations in the Blue Buffalo pleadings discussed below. See, e.g., New
England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d
495, 501 (6th Cir. 2003) (taking judicial notice of complaint filed in a different action
and noting that “[a] court that is ruling on a Rule 12(b)(6) motion may consider
materials in addition to the complaint if such materials are public records or are
otherwise appropriate for the taking of judicial notice”). Moreover, the scope of the
Court’s judicial notice is limited. The Court merely takes notice of the fact that the
allegations described above were made in the referenced pleadings. The Court
reaches no conclusion about the veracity of those allegations.
26

licking his chops in the lower left. The upper half of the
package states “Purina” in moderate size type on the upper
left, with “Beggin’ Strips” proclaimed in large, bold type
at the center, with the words “Brand Dog Snack” in very
small type below. Immediately below that, the weight of
the package is set forth in large bold type – in this example,
“25 oz.” Below the 25 oz., the phrase “made with real
bacon!” is prominently set forth. Below that is a large
image of a crispy piece of bacon splayed across nearly
one-half the package. Nestled just below to the bottom
right of the crispy piece of bacon is an icon of a small black
frying pan containing two sizzling pieces of bacon. In a
purple ball atop which the bacon-filled frying pan rests,
“bacon flavor” is boldly displayed. Just below the bottom
circumference of the ball is the text “AHH, LOVE AT
FIRST SNIFF!” Finally, in the bottom right corner of the
packaging, the net weight of the product is set forth.
The back packaging of the Beggin’ Strips is equally
misleading. The top half features the image of a crazed,
outstretched, salivating dog chasing what looks like a
giant crispy strip of bacon. Immediately below that image,
in huge bold type, is the caption “BacoNology 101.”
Below “BacoNology 101” on the left of the packaging is a
box containing the following text: “There’s No Time Like
Beggin’ Time. Beggin.com.” To the right of the box is the
explanation of the meaning of the banner “BacoNology
101.” Bullet point 1 is “EXCITEMENT = BEGGIN’ X
SPEED OF SMELL.” Bullet point 2 is “WHAT
HAPPENS WHEN AN IRRESISTIBLE AROMA
MEETS AN IMMOVABLE APPETITE? BEGGIN’
TIME!” Bullet point 3 states: “AN OBJECT IN MOTION
STAYS IN MOTION. CHECK OUT MY TAIL!” To the
right of the bullet points is the icon of the black frying pan
containing two crispy strips of bacon. At the very right
corner of the back packaging, below a set of instructions
to consumers to “Feed as a treat to your adult dog,” is an
oval containing text stating: “Baconologists standing by,”
followed by the Purina logo and the purina.com website
address, the Purina call center phone number, and its hours
27

of operation. The bottom left corner of the back packaging
contains a “Guaranteed Analysis” of the protein, fat, and
fiber content of the product, plus a list of ingredients, with
the ingredients listed in decreasing order of predominance
by weight.
(Id. at ¶¶ 17-18; emphasis added.)
The plaintiff did not stop with his analysis of the alleged deception caused by
the packaging. He alleged that the name of the product, how it was shaped and
colored, and its smell all contributed to the deception of consumers: “[T]he Beggin’
dog treat products are cut, shaped, colored, and striated to look like real bacon, and
they are flavored to smell like real bacon. The product name, ‘Beggin,’ is designed
to, and does sound virtually the same as ‘Bacon’ when spoken.” (Id.) Finally, the
plaintiff alleged that “[d]efendant’s misleading representations and omissions [were]
conveyed to the consuming public uniformly and through a variety of media,
including its omnipresent television advertisements, its websites and online
promotional materials,” and that that advertising campaign reinforced the misleading
nature of the product’s packaging. (Id.) The plaintiff then specifically explained
how the television advertisements for the Beggin’ Strips product reinforced the
allegedly-misleading message that the product contained real bacon:
Defendant aggressively markets its Beggin’ dog treat
product line, and engages in a long-running, popular,
national television commercial campaign featuring
comical videos of dogs enthusiastically musing about their
strong desire for bacon and Defendant’s Beggin’ dog treat
products. For example, Defendant’s television
28

commercials for its Beggin’ Strips dog treat product
plainly, but falsely, suggest that the product is made of
bacon and that the prime ingredient is bacon.
[….]
For instance, one famous television ad, which Plaintiff has
viewed, bears the tagline “There’s No Time Like Beggin’
Time.” The commercial has aired over 6,700 times on
national and spot television, and is currently being aired.
See www.ispot.tv/ad7IFX/purina-beggin-strips-beggintime. The commercial begins with an adult female opening
a bag of Beggin’ Strips. A visualization of fumes emanates
from the bag which waft to the family dog resting on the
floor, head down. As soon as the fumes reach the dog, he
jumps to attention, with a thought bubble emanating from
his right ear. The thought bubble contains a picture of four
strips of crispy bacon on a plate. The dog starts shouting
(by a voiceover): “Bacon, gotta get that bacon!” before
barking and running downstairs, seeking out the source of
the fumes. The voiceover frenetically continues: “Smoky
bacon! Crispy bacon! Tasty bacon!” as the dog races
through the house, careening into a pile of alphabet blocks
a small girl is playing with in the family room. The dog
causes the tower of blocks to spin around until it stops and
spells out “BACON” to the delight of the clapping child.
The dog runs into the living room, where the man of the
house is napping in a recliner. Screaming “Where is it?
Where’s the bacon,?” (an ironic, though unintended
metaphor for this entire case), the dog jumps on the
napping man, waking him up all flustered. Another male
voiceover, emanating from the television in the living
room as a news broadcaster, states: “Bacon popular. Story
at 11.” The dog bursts into the kitchen, shouting “Yummy,
crunchy, BACON! BACON! BACON!” After looking at
an empty frying pan on the stovetop, the dog cries: “There,
in that bag” as he sees the woman of the household holding
the bag of Beggin’ Strips. She wooingly entreats: “Who
wants a Beggin’ Strip?” The dog screams: “Me! I’d get it
myself but I don’t have thumbs. Yum! Yum! Yum! IT’S
29

BEGGIN’! Mmm, I love you!” The woman hands the dog
a strip that looks just like a bacon strip. The thankful dog
jumps on her as she kneels, and he kisses her face. Another
male voiceover states: “Beggin’ Strips, Made with real
bacon. There’s no time like Beggin’ time!,” as a frying pan
of oil sizzles in the background. Throughout the
commercial, when the word “beggin’” is used, it sounds
just like “bacon.”
This well-known television commercial, and others used
by Defendant to market its Beggin’ dog treat products,
falsely portray the treats as being made largely of real
bacon.
(Id. at ¶¶ 13-15.)
Notwithstanding all of these specific allegations about both the product
packaging and the “omnipresent” television and media advertisements, the court
struggled to decide whether the plaintiff stated a plausible claim of consumer
deception. The court ultimately concluded that the claim was plausible, but the court
“emphasiz[ed] that the question [was], to be sure, a close one….” Kacocha, 2016
WL 4367991, at *16 (emphasis added).
B
In Blue Buffalo, Blue Buffalo Company, Ltd. and Nestle Purina Petcare
Company, competing pet food manufacturers, filed false and/or deceptive
advertising claims against each other. Some of the claims were based, in part, on
depictions of certain desirable ingredients on the parties’ packaging. The court
declined to dismiss all of these claims.

30

In one claim that survived, Purina claimed that Blue Buffalo’s packaging and
marketing of its Super 7 Lifesource Bits product painted a deceptive picture of the
product’s ingredients. In Purina’s words: “Blue Buffalo’s marketing and advertising
… falsely misle[d] consumers into believing that [Lifesource Bits] contain[ed]
significant amounts of human grade ingredients such as the fresh fruits and
vegetables pictured on the product packaging and website.” (Purina Counterclaim,
Blue Buffalo Co. Ltd. v. Nestle Purina Petcare Co., Case No. 15-384 (E.D. Mo.),
Dkt. #105 at ¶¶ 15-16.)

In support of this claim, Purina highlighted the

characteristics of certain allegedly-deceptive images and the context in which they
appeared.

Purina alleged that: (1) the front of the Lifesource Bits package

“prominently represented,” in both text and in “large and colorful graphic[s]” of
seven different fruits and vegetables, that the product contained “ingredients rich
with antioxidants;” and (2) the back of the package featured (a) a second “prominent
image of the seven fruits and vegetables, with the caption ‘Super 7 Antioxidant-Rich
Ingredients’” and (b) additional descriptive text which informed consumers that
“BLUE’s exclusive LifeSource Bits now feature our Super 7 package of antioxidantrich ingredients which include spinach, pumpkin, blackberries, apples, blueberries,
cranberries, and pomegranate.” (Id. at ¶¶ 12-13.) Purina also contended that specific
pages of Blue Buffalo’s website “reinforced” the “message” on the Lifesource Bits
packaging:

31

The false and misleading message of the packaging for the
[Lifesource Bits products] is further reinforced by Blue
Buffalo’s website. Under the section labeled “Our
Enhanced LifeSource Bits Now with Super 7 Natural
Antioxidants,” the image of a cornucopia of fresh fruits
and vegetables is pictured and Blue Buffalo assures
consumers that its “Super 7 package” includes: spinach,
pumpkin, cranberries, blueberries, pomegranate, and
blackberries. The website reinforces Blue Buffalo’s
message that the seven fruits and vegetables depicted are
seven of the main ingredients in these pet food products….
(Id. at ¶14.)
The court reviewed these allegations and found them “weak.” Blue Buffalo II,
2016 WL 3227676, at *3. Nonetheless, when the court considered the “challenged
advertisements, packaging, and website statements as a whole,” it concluded that
Purina’s allegations were not “so incredible” that dismissal was appropriate. Id.
(emphasis added).
The court also declined to dismiss Blue Buffalo’s claim that the packaging
and marketing of Purina’s “Beneful” line of products was misleading. In that claim,
Blue Buffalo insisted that Purina’s multi-faceted marketing campaign “coney[ed]
that ‘Real Beef’” or other prominently-displayed ingredients were “the primary
ingredient[s] in the [Beneful] product” when they were not. (Blue Buffalo First
Amended Complaint, Blue Buffalo Co. Ltd. v. Nestle Purina Petcare Co., Case No.
15-384 (E.D. Mo.), Dkt. #25 at ¶33.) Specifically, Blue Buffalo emphasized that:
(1) the packaging for the Beneful products “typically featured” “prominent[]” and

32

“colorful pictures of chunks of whole meat, whole vegetables and grains, scattered
across the white background of the package” located near “claims that the foods are
made with ‘real’ ingredients;” (2) the front of the Beneful packages depicted a “[a]n
orange ribbon directly underneath the name of the brand [which] prominently
display[ed] the words ‘With Real Beef’ in white lettering;” and (3) the Beneful
packaging “reinforce[ed]” the message featured on Beneful’s television
commercials – ads that Blue Buffalo specifically alleged included “a cascade of
apparently human-grade meats, vegetables and grains falling through the air” – that
the Beneful products were “comprised primarily of high-quality wholesome
ingredients.” (Id. at ¶¶ 32-34.)
The court held that these allegations of deception were plausible. It concluded
that the “repeated depictions of whole pieces of beef” and other ingredients
prominently featured both on the Beneful packages and television commercials
could plausibly mislead a reasonable consumer “into thinking that the Beneful dog
food contain[ed] greater amounts of those [depicted] ingredients.” Blue Buffalo I,
2015 WL 3645262, at *8 (emphasis added).
Finally, the court refused to dismiss Blue Buffalo’s claim that Purina’s
packaging and advertising for its Chef Michael’s brand of pet food was misleading.
Blue Buffalo contended that the packaging and advertising for this brand were
deceptive because, among other things, “[c]ontrary to [Purina’s] false and

33

misleading claims, the ‘Tender Pieces’ [of meat featured on the product’s label]
include[d] soy products and other cheaper ingredients, [and thus] any meat
components of these pieces [were] NOT the whole pieces of premium meat cuts
pictured in the advertisements and packaging.” (Blue Buffalo First Amended
Complaint, Blue Buffalo Co. Ltd. v. Nestle Purina Petcare Co., Case No. 15-384
(E.D. Mo.), Dkt. #25 at ¶41.) In support of this claim, Blue Buffalo pointed out that:
(1) the packaging for the Chef Michael’s line of products “prominently feature[d]
photos of pieces of raw ‘Real Chicken’ and ‘Real Beef;’” (2) the packaging included
photos of cooked chicken and beef –promoted as “Tender Pieces” – located directly
next to images of raw chicken or beef and the phrase “Real Chicken [or Real Beef]
is Our #1 Ingredient;” (3) the names of the products, such as “Oven Roasted
Chicken” and “Grilled Sirloin Steak” “reinforce[d]” that the package contained the
“real chicken” and “real beef” pictured; and (4) the “tag line prominently featured
on the product’s website [] – ‘It’s not just dog food. It’s Chef Michaels’” –
“reinforced” that the “product [was] made from chunks of premium meat.” (Id. at ¶¶
40-42).
The court ruled that these allegations stated a plausible claim of deception. It
concluded that “Purina’s advertising and packaging” could “mislead consumers into
thinking that the ‘Tender Pieces’ [as named and identified on the Chef Michael’s

34

packaging] [were] whole pieces of chicken.” Blue Buffalo I, 2015 WL 3645262, at
*11 (emphasis added).
C
The allegations deemed sufficient in Kacocha and Blue Buffalo are far
stronger than Wysong’s allegations here in two significant respects. First and most
importantly, unlike Wysong’s claims, the claims that survived in Kacocha and Blue
Buffalo carefully accounted for the context and character of the allegedly-deceptive
images. Those claims provided important details about the images of the premium
ingredients and their placement on the allegedly-deceptive packaging. As described
in detail above, those claims highlighted, among other things, the connections
between the images and surrounding words, the link between the images and the
names of the products, whether the images were prominently displayed on the
packaging, whether attention was drawn to the images through special effects or
otherwise whether the images appeared repeatedly, and whether the packaging
contained graphics and/or color schemes that drew the consumer’s eye to the images.
Wysong’s claims contain none of this detail.
Second, the claims deemed plausible in Kacocha and Blue Buffalo rested upon
much more than the mere depiction of premium ingredients on pet food packaging.
Those claims alleged that consumers were misled by a combination of images and
statements across a variety of media (such as television advertisements, websites,

35

and online promotional materials). The parties also provided important specific
details about the statements in that media and explained how those particularlyidentified statements reinforced the misleading message on the packaging. Thus,
the parties alleged that deception resulted from the collective impact of specificallydescribed deception across a variety of media, not from an image of a premium
ingredient on a package alone.
Wysong has not done the same.

While Wysong does allege that the

Defendants “reinforce [their] misleading photographs on packages … with
television, internet, and print advertising with substantially the same depictions,”
(Am. Compl. at ¶23, ECF #14, Pg. ID 274), Wysong does not provide a single detail
or specific factual allegation about any alleged deception on any television
advertisements, websites, or print advertising. Wysong’s lone conclusory allegation
about these other forms of marketing falls far short of the detailed allegations of
coordinated deception that were made in Kacocha and Blue Buffalo.
The comparative weakness of Wysong’s claims underscores their lack of
plausibility. Kacocha and Blue Buffalo show what a plausible claim of deception
may look like in the pet food world. Wysong’s claims lack essential components of,
and pale in comparison to, those claims.

36

VII
The Court declines to allow Wysong to amend its complaints for a second
time. While leave to amend should be “freely give[n] when justice so requires,”
Fed. Rule Civ. Proc. 15(a)(2) (emphasis added), justice does not require that Wysong
be permitted to file Second Amended Complaints. The Court already gave Wysong
the opportunity to amend its claims once, and at that time the Court stressed its
expectation that Wysong would take that opportunity to remedy the deficiencies
highlighted by the Defendants. Wysong did not do so. Instead, it largely stood pat
on its originally-pleaded claims. And the Defendants and the Court then spent
considerable time analyzing those claims. Under these circumstances, it would be
unjust to permit Wysong to amend again.
A careful review of the procedural history of these actions confirms that
Wysong should not be permitted to file yet another amendment. The most important
aspect of that history is that well before Wysong filed its Amended Complaints,
several of the Defendants had highlighted Wysong’s failure (in the original
Complaints) to make specific allegations concerning the characteristics and contexts
of the allegedly-deceptive images of premium ingredients. Defendants Mars, APN,

37

and Wal-Mart raised these issues (and others21) in their motions to dismiss Wysong’s
original Complaint (the “Initial Motions to Dismiss”).
For instance, Mars argued that its “package[s] or label[s] must be viewed as
a whole” and that the “mere presence of [] images of meat” could not mislead
reasonable consumers into believing that the pictured meat was the primary animal
ingredient in the product. (Mars’ Initial Mot. to Dismiss, ECF #7 at Pg. ID 177, 182;
emphasis added.) Mars further insisted that many of the images could not be
misleading given their size and context. More specifically, Mars contended that
“[t]he images of meats, fruits, and vegetables comprise less than 10% of the space
on [their] package[s] or label[s] and in most cases substantially less than 10%” and
that “[a] substantial portion of reasonable purchasers are not likely to believe that
Mars’s pet food is fit for human consumption based on the presence of a small image
of a premium cut of meat on the package or label.” (Id. at Pg. ID 179, 181; emphasis
added.)
Likewise, Wal-Mart argued that Wysong did not account for any aspect of the
packaging other than the challenged images: “[B]eyond pointing to pictures,
Wysong [has] alleg[ed] no facts that could make its [] theory plausible.” (Wal-Mart

21

These Defendants primarily argued that an image of a premium ingredient on a
pet food package would never deceive a consumer into believing that the food
contained that precise ingredient. But they also raised their concerns, described in
text above, that Wysong’s allegations failed to account for the characteristics and
contexts of the allegedly-deceptive images.
38

Initial Mot. to Dismiss, Wysong Corp. v. Wal-Mart Stores. Inc., Case No. 16-cv11832 (E.D. Mich.), ECF #13 at Pg. ID 61.)

Wal-Mart also contended that

Wysong’s claim was not plausible in part because “Wysong [did] not differentiate
its Lanham Act theory by product, or indeed, differentiate at all.” (Id. at Pg. ID 6566.)
Finally, APN stressed that Wysong’s allegations needed to be “[c]onsidered
in the context of the packaging as a whole.” (APN Initial Mot. to Dismiss, Wysong
Corp. v. APN, Inc., Case No. 16-cv-11821 (E.D. Mich.), ECF #9 at Pg. ID 78.) And
APN highlighted that Wysong’s claims rested entirely on the images, standing alone:
“Wysong’s Complaint boils down to a single gripe about [Defendants’] advertising
that rests solely on Wysong’s unrealistic view of how consumers allegedly react to
images of meats, fish, fruits, vegetables, and other foods on pet food packaging.”
(Id. at Pg. ID 83; emphasis added.)
The Court reviewed the arguments in the Initial Motions to Dismiss and
concluded that Wysong deserved the opportunity to address them (and the arguments
to be made by the other three Defendants) by adding factual allegations to its claims.
The Court did not want to undertake an exhaustive analysis of Wysong’s claims until
it had given Wysong that opportunity. Nor did the Court want the parties to spend
time and resources on motion practice until Wysong had the chance to augment its
claims. The Court therefore convened a telephonic status conference with all

39

counsel to address these matters. (See ECF #12.) The Court told counsel for Wysong
and for all Defendants that it expected them to meet and confer regarding
Defendants’ contentions that Wysong’s original allegations were deficient. The
Court explained that it would give Wysong the opportunity to file First Amended
Complaints in which it could address any deficiencies raised by the Defendants in
the Initial Motions to Dismiss and/or during the meet-and-confer process. Following
the telephonic conference, the Court entered a written order that memorialized its
decision “to give Wysong’s counsel an opportunity to attempt to address [the]
deficiencies [that Defendants’ believed existed in the original Complaints] through
an Amended Complaint.” (ECF #14 at Pg. ID 108; emphasis added.)
Counsel conducted the required meet-and-confer sessions, and Wysong
thereafter filed its First Amended Complaints. Wysong did not add many new
factual allegations in its amended pleadings. (See, e.g., redline comparison between
Wysong’s Complaint and Amended Complaint, Wysong Corp. v. Hill’s Pet
Nutrition, Inc. Case No. 16-cv-11825 (E.D. Mich.) at ECF #15-2.) Notably, Wysong
did not add factual allegations concerning the specific nature and/or context of any
of the allegedly-misleading images, concerning any words or statements used on the
packaging in conjunction with the images, or concerning any specific marketing
efforts (such as particular statements in television advertisements, in website
promotional materials, etc.) that may have reinforced the allegedly-misleading

40

nature of the images Instead, Wysong’s counsel “made the decision to leave [the
claims largely] the way they are.” (Wysong Corp. v. Nestle Purina Petcare Co., Case
No. 16-cv-11827 (E.D. Mich.), 2/1/17 Hearing Tr. at 71, ECF #22 at Pg. ID 425.) 22
Having made that decision, Wysong is not entitled to amend again.
Wysong counters that it should be permitted to amend because it proceeded
in good faith and because, if permitted to do so, it could add allegations to satisfy
the Court’s concerns about the plausibility of its claims. The Court does not doubt
Wysong’s good faith, but that good faith is not enough to warrant another
amendment. Wysong’s litigation strategy imposed real and substantial costs on
Defendants and on the Court. The Defendants spent significant time and money
preparing their motions to dismiss and supplemental briefs and traveling to and from
Detroit to argue those motions. Likewise, the Court spent many hours reviewing the
briefs (over 300 pages in total), studying the case law, holding oral argument, and
drafting this Opinion and Order. The purpose of this exercise was to assess the
viability of Wysong’s once-amended claims, not to provide Wysong with

22

In the Initial Motions to Dismiss, each of the Defendants also directed Wysong to
the Blue Buffalo case in which a federal court found analogous claims to be plausible.
(Mars’ Initial Mot. to Dismiss, ECF #7 at Pg. ID 179-82; APN Initial Mot. to
Dismiss, Wysong Corp. v. APN, Inc., Case No. 16-cv-11821 (E.D. Mich.), ECF #9
at Pg. ID 81-86; and Wal-Mart Initial Mot. to Dismiss, Wysong Corp. v. Wal-Mart
Stores. Inc., Case No. 16-cv-11832 (E.D. Mich.), ECF #13 at Pg. ID 67-69.) Despite
being directed to Blue Buffalo, Wysong did not include in its Amended Complaints
allegations – like those in Blue Buffalo – concerning the context and character of the
allegedly-deceptive images and the related media campaigns.
41

constructive criticism regarding how to save those claims through yet another
amendment. Notwithstanding Wysong’s good faith, it is not “not entitled to an
advisory opinion from the Court informing [it] of the deficiencies of [its] complaint
and then an opportunity to cure those deficiencies.” Begala v. PNC Bank, Ohio, Nat.
Ass’n, 214 F.3d 776, 784 (6th Cir. 2000) (quoting and affirming district court order
denying leave to amend complaint).
In sum, Wysong had a full and fair opportunity to amend its pleadings and to
put its strongest possible claims before the Court and the Defendants. Justice does
not require the Court to grant Wysong a “do over” under these circumstances. Thus,
even though Rule 15 embodies a liberal policy in favor of permitting amendments,
see, e.g., Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 552 (6th Cir. 2008), the
Court declines to grant Wysong leave to file a Second Amended Complaint.
VIII
For the reasons stated above, the Defendants’ motions to dismiss are
GRANTED. Wysong’s First Amended Complaints in all of the above-captioned
actions are DISMISSED WITH PREJUDICE and without leave to amend.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 20, 2017

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 20, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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APPENDIX ONE

44

DELETED FROM ORIGINAL
COMPLAINT BECAUSE THEY “DON’T
FIT WITH WYSONG’S THEORY”

LEFT IN AMENDED COMPLAINT AS
REPRESENTATIVE OF WYSONG’S
“THEORY”

Purrfect Bistro Turkey Recipe Shredded in
Gravy
(Wysong Corp. v. Nestle Purina Petcare
Company, Civil Action No. 16-11827, ECF #12 at Pg. ID 42.)

Purrfect Bistro Savory Duck Recipe
Shredded in Gravy
(Wysong Corp. v. Nestle Purina Petcare
Company, Civil Action No. 16-11827, ECF
#1-2 at Pg. ID 41; ECF #16-3 at Pg. ID 245.)

Purrfect Bistro Savory Trout Dinner Morsels in
Gravy
(Wysong Corp. v. Nestle Purina Petcare
Company, Civil Action No. 16-11827, ECF #12 at Pg. ID 45.)

Limited Ingredient Diet Real Salmon Recipe
(Wysong Corp. v. Nestle Purina Petcare
Company, Civil Action No. 16-11827, ECF
#1-2 at Pg. ID 48; ECF #16-3 at Pg. ID 248.)

45

Iams Woof Delights Bowl Licken’ Chicken &
Vegetables Medley
(Wysong Corp. v. Mars Petcare Co., Civil
Action No. 16-11826, ECF #1-3 at Pg. ID 88.)

Milk Bone Soft & Chewy Chicken Recipe
(Wysong Corp. v. Big Heart Pet Brands et al.,
Civil Action No. 16-11823, ECF #1-3 at Pg. ID
57.)

46

Iams Adult Chunks with Chicken and
Vegetables in Gravy
(Wysong Corp. v. Mars Petcare Co., Civil
Action No. 16-11826, ECF #1-3 at Pg. ID
74; ECF #14-2 at Pg. ID 298.)

Healthy Favorites Chewy Treats with Real
Chicken
(Wysong Corp. v. Big Heart Pet Brands et
al., Civil Action No. 16-11823, ECF #1-3 at
Pg. ID 58; ECF #16-2 at Pg. ID 143.)

Nature’s Recipe Easy to Digest Chicken
Nature’s Recipe Easy to Digest Chicken Rice
Rice & Barley Recipe Homestyle Ground
& Barley Recipe Cuts in Gravy
(Wysong Corp. v. Big Heart Pet Brands et
(Wysong Corp. v. Big Heart Pet Brands et al., al., Civil Action No. 16-11823, ECF #1-3 at
Civil Action No. 16-11823, ECF #1-3 at Pg. ID Pg. ID 65; ECF #16-2 at Pg. ID 148.)
64.)

47