Another lawsuit that could have benefited pet food consumers has been dismissed. The judge felt Wysong did not prove their case.
Wysong filed a lawsuit (6 lawsuits) against Mars, Purina, Hill’s, Big Heart, APN, and Walmart pet foods in 2016. The lawsuit challenged the many misleading images found on pet food labels. Quoting the original complaint(s): “In short, the premium meats, fish and vegetables portrayed on [Mars’s, Purina’s, Big Heart’s, Hill’s, Ainsworth, and Walmart’s] pet foods do not fairly represent the actual ingredients of the packages. The portrayals are literally false and thus by their very nature have the capacity to deceive consumers.”
Below are some of the images taken from the 6 lawsuits – they are from pet food labels or the pet food website. Even though every single picture portrays human food, each of the pet food companies involved – including Wysong – manufacture feed grade products.
As the lawsuit progressed, the pet food companies being sued argued “The pictures on the packages inform consumers about the general type of ingredients in the products (chicken, beef, salmon, vegetables, etc.). These easily recognizable graphic depictions of ingredients are a quick, simple way for consumers to know what they are buying.”
Mars defended their marketing with “A reasonable pet food consumer would not believe that images of meat, vegetables or fruits on packages mean that the food is comprised of premium ingredients…” “…the images on Defendants’ packaging convey the simple and true message that the products contain the protein (or fruits and vegetables) from the types of animals depicted. The images on Defendants’ packaging depict the ingredients actually contained in the products in a form that consumers readily identify.”
And the judge agreed with Mars and the other defendant pet food company’s argument. The judge ruled:
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.
But an image of a premium ingredient on a package of pet food, standing alone, does not “unambiguously,” “necessarily,” and “unavoidably” 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.
“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.” A plaintiff must therefore provide “more than labels and conclusions,”… “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
All six lawsuits were dismissed.
How very unfortunate that Wysong did not provide facts necessary for the court. It is unfortunate that the judge wasn’t informed that all of these products are ‘feed’ being represented to consumers as ‘food’. It is unfortunate that the judge wasn’t informed that definitions of pet food ingredients – which are very different than their human food counterparts – are corporately owned, not public information. It is unfortunate that the judge wasn’t informed that the legal definition of many ingredients used in defendant’s pet ‘foods’ violate federal law. It’s also unfortunate that Wysong didn’t perform a couple of simple consumer surveys…with filmed footage of consumer feedback proving that those images most certainly mislead consumers. That little bit of effort could have changed the outcome of this lawsuit and could have benefited consumers.
Big Pet Feed wins again.
To read the full dismissal of the lawsuit(s), Click Here.
Wishing you and your pet(s) the best,
Susan Thixton
Pet Food Safety Advocate
Author Buyer Beware, Co-Author Dinner PAWsible
TruthaboutPetFood.com
Association for Truth in Pet Food
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Pacific Sun
July 24, 2017 at 4:43 pm
It’s unfortunate …that these PF clients and their lawyers don’t consult with you FIRST in order to lay out the foundation for a lawsuit. How many of these are we seeing dismissed lately, because the wrong or unsubstantiated “assumptions” are being presented, but not PROVEN or backed up by facts!!
Geesh, you’d think these high paid professionals would’ve watched SOME court room dramas on TV!!
Jan
July 24, 2017 at 5:00 pm
I completely agree with Pacific Sun. When drawing up a lawsuit it is common sense that one needs to back up accusations with facts, and if need be, photos. Otherwise, it’s no different than submitting a complaint. It appears that they unfortunately blew it.
Cannoliamo (@Cannoliamo)
July 24, 2017 at 4:44 pm
This decision is really disheartening. I’m a big fan of Wysong and think their suit undeniably has merit. The judge should be forced to eat those foods pictured for 2 or 3 months and then perhaps reconsider this ruling.
Ms. B Dawson
July 24, 2017 at 5:11 pm
From the judge’s quote in your article: ..”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.”…
If the image of juicy, human-consumable meat doesn’t influence consumer purchasing, why not merely use the image of lamb, chicken or cow? These images would also convey the type of meat contained in the bag.
Of course, images of whole live animals have two problems:
1) how many consumers actually know what animals look like? I was recently at a grocery store where the checker (a young lady of maybe 25) had to ask me what each of the fresh vegetables were so she could input the price. She literally didn’t know what a zucchini, sweet potato or kale looked like in it’s whole state.
2) the image of a lamb doesn’t stimulate a sale. Marketing departments know this and that’s why they influence gullible consumers with images of grilled steaks and lamb chops.
Shame on Wysong for not doing a better job. Deceptive packaging isn’t tolerated for human food, why should it be for pet food (feed).
Pacific Sun
July 24, 2017 at 7:27 pm
A package of food for humans must be accurately depicted by the pictures on it! TV Dinners are a good example. It’s pretty basic. Not especially scrumptious. Just what it is. Proportion must also be accurate. Companies don’t expect the consumers to “assume” the nutrient value of the food; they clearly state on the analysis label.
The lawyers should’ve questioned, why is there (or why should there be) a different standard for PF? (TAPF knows why of course, and this could’ve been part of their argument). Natural nutrients of the food are extracted (dehydrated and cooked at high heat) so vitamins/minerals must be added back. That’s full deceit right there. “A” picture of a “drumstick” suggests a whole food natural benefit. Like you’re eating in a TV Dinner! and yet PF is processed in a way that negates the original nutritional benefit.
If the judge says pictures are reasonable representations, then what’s the argument behind using only selective images? If corn is the predominant ingredient, then shouldn’t there be lots of corn, compared to the meat? And then is it really whole corn like in the supermarket, or field corn?
The judge says pictures of whole food are reasonable, just like we don’t see the literal pictures of food going into ketchup or apple sauce. (Not appetizing). The essence of those fruits are close enough to our expectation of why we’re buying the product! But the difference between human food and PF, is that one is human quality (edible) and the other is “livestock” grade, not intended for long term sustenance.
If the argument really is about “reasonable” then push it further. And they would’ve had a real case! Meaning NO company purposefully BBQ’s sirloin (looking) steak patties to achieve grill marks! Because nothing like that ever goes into the product, period. Relative quality IS the argument! And the pictures on the package do not represent “livestock feed.” Because … and the key is…. there is no disclaimer on a bad of dog food that says, this product is intended for animal use only!!! Otherwise, the idea of “believing” in THOSE actual pictures used, would suggest there is also no restriction on the product (correct)? Otherwise the judge is expecting a reasonable consumer, to be jumping through a whole lot of hoops (curiously and always favoring the PFI)!
The problem is that unsuitable grades of meat, are dehydrated, with natural juices (moisture) extracted, to be pulverized into powder, mixed with other ingredients treated in the same way, to be cooked at very high heat. There’s a difference between bright, fresh carrots, and rotten, moldy, brown, aging, vegetable dregs. Which is the reason why (synthetic) vitamin/minerals must be added back in.
Which is what the lawsuit should’ve used to demonstrate the intentional deceit of the advertising! In fact, they should’ve argued on the implied understanding of …. what’s even reasonable!! I can’t believe they didn’t even do a Focus Group! As in, if you knew “this” about PF, and yet saw a picture, would you still buy it?!
Curiously The Honest Kitchen doesn’t use real pictures of food on the box. However, because they’ve already established a reputation for using Human Grade Quality ingredients, “reasonable” consumers don’t even need pictures of food! Nor do Wysong’s, and a few others (even though they aren’t human grade). Which is yet another distinction the lawyer’s argument should’ve made. Meaning, if some companies are successfully marketing PF without suggestive depictions, they why permit others to do so (especially the ones with questionable quality, which of course, would’ve needed to be demonstrated through TAPF’s research)!
Btw: your Checker was in sorry need of retraining. Whether or not she’s ever eaten a vegetable, she should be trained in whatever the grocery store is selling! But then most youth doesn’t even know what “half a dozen” or “a Bakers dozen” means either!
Peter
July 25, 2017 at 7:43 am
We must accept that there is a difference between allegation and “fact,” and that the judge correctly analyzed that specific failure of Wysong’s complaint. Its hard to understand (or excuse) the basic miscalculation of the company’s attorneys.
Its interesting that so-called “ordinary consumers”– whose understanding of pet food manufacture is so often denigrated– can articulate certain aspects of the problems with Wysong’s approach to analysis of “consumer expectation.” So, likewise, these same “ordinary consumers” can intelligently identify obstacles to both the defendants and judge’s approach to analysis of that consumer expectation.
The example of frozen or “TV dinner” style human-grade “food” is an apt one. Consumers really don’t expect the food in the container to “look” as good or be as good or even taste as good as what is depicted on the box. Consumers naturally understand that a truly accurate representation is, well, really… impossible: because if it WERE accurate, it really wouldn’t look too good… and they’d probably not purchase it. The consumer readily accepts and excuses the pictures on the box as (advertising) “puffery.” The consumer is naturally disappointed when s/he gets a look at the re-heated frozen dinner… but accepts it, with a sigh and a poke… and an “… Oh, well.” It just CAN”T be that good as what’s on the box. But that’s OK.
The real problem is, what is “reasonable,” what is normally expected as “puffery,” and what is excessive or just plainly deceptive? In the end, it is simply not reasonable to relate those expectations as comparable, because the ingredients in pet foods are so much farther in difference than those for the frozen TV dinner: both in their “original” form and as they appear on the package or as the finished product.
The ingredients in the TV dinner, while not what appears on the box, and perhaps not of the same “quality,” are still recognizable as those ingredients. Both in their “natural” state, during processing, and in the finished product. Whereas the ingredients in the pet “food” are generally not. To me, that is the disconnect. The consumer might well accept the difference in the TV dinner… but not the difference in the pet food.
Susan in her essay and many of the comments following correctly focus on the issue that the supply chain processes of the ingredients in the TV dinner are simply not comparable to those of the pet food. A simple graphic of photos– lets be frank: “meat” for the TV dinners isn’t delivered to the factory in a dump truck, is it?– would have made that clear. It really makes you wonder!
Jane
July 24, 2017 at 5:37 pm
Wow – I thought this would be a relatively easy win. It’s so blatant! If anyone else pursues this, I hope they take your suggestions!
Eve
July 24, 2017 at 7:10 pm
Sue maybe take these pictured outside to the customers of supermarkets etc video tapping it asking if they believe that this is what they believe the ingredients to be as I am sure the buyers do because if the products showef TRUE IMAGES they woul not buy it it would make them feel physically sick.
Ian
July 24, 2017 at 7:41 pm
I think the judge is wrong. I hope Wysong appeals. So many cases get turned around on appeals, if you can afford it.
Hannie
July 24, 2017 at 7:48 pm
I guess people who love pets have a different mindset than a judge who apparently does not…….I thought this was a pretty open & shut case. If they pictured what was really inside the bag, nobody would buy it. Therefore, that’s false advertising & basically “lying” to consumers. Buyer beware. Amazing what power & money can buy……
JaneeS
July 26, 2017 at 1:08 am
There are so many loopholes that Big Petfood slithers through that Wysong did not address. The suits need to educate judges or juries at the beginning of the case as to what the pet food terminology means and present what is happening with pet food regulation. They need to address specifically how the pet food industry laws are not being enforced by FDA, which allows pet food companies to lie and to treat consumers as fools about the products they buy.
I feel like many lawyers handling these cases are newbies who are not educated on what they are trying to present in these suits. They need to consult experts like Susan who can always see where the holes lie in the cases. I wish they would anticipate the holes in their cases and anticipate the same old rhetoric from Big Petfood. Why didn’t Wysong do some real customer research? How many ordinary consumers were polled about what they believe is in the bag compared to the pictures.. And then get comments from consumers when they are told and shown what actually is in the bag. Using the term “reasonable consumer” has no legal definition and should not be a stand in for real customer testimony.
Bob E.
July 26, 2017 at 10:37 pm
Actually, Wysong did present facts in their response to the defendants motion to dismiss. See it here https://drive.google.com/file/d/0B_lljuZmgytQVDdOYlc4YXBaV2s/view
They specifically cited previous cases that ruled deceptive pictures were false advertising that misled customers and they quoted the legal definition of byproducts, which specifically states byproducts do not contain meat. Meat is defined as the breast, thigh etc., whereas byproducts are intestines, feet, and etc.
In light of the above and other factual evidence they presented, Wysong stated the case should not be dismissed, but should be heard at trial.
Further evidence would have to be presented at trial. These types of legal pleadings highlight the basis of the claims and further supportive evidence is presented at trial.
Really, I think Wysong did a fine job on the pleading. They clearly stated legal definitions and prior case law, without resorting to colorful exaggerations. They were truthful and to the point, and the facts leadings highlight the basis of the claims and further supportive evidence is presented at trial.
Really, I think Wysong did a fine job on the pleading. They clearly stated legal definitions and prior case law, without resorting to colorful exaggerations. They were truthful and to the point, and the facts presented showed merit that the case should have gone to trial for further examination.
Pacific Sun
July 27, 2017 at 7:30 pm
Do the comments stated in the document via the GOOGLE link provided, represent Wysong’s attempt to appeal the dismissal judgement? If so, I agree (having read it) the argument is compelling on the examples and precedents provided.
Bob E.
July 27, 2017 at 7:07 am
Sorry my comment is a bit messed up above. I was having trouble submitting it on my phone so I reloaded the page and did a copy paste so I didn’t have to rewrite it and we’ll, as you can see, it got a bit messed up.
Rick
September 12, 2019 at 12:59 pm
Contrary to your conclusion, Wysong DID prove their case and any reasonable person can see that by looking at their court filings. You mentioned that such pictures are illegal. I saw that Wysong directly quoted from statutes proving the pictures were illegal. The judges ignored it.
My impression is that it would not have mattered what Wysong did, the billions of dollars of the companies were what swayed the judges. Who knows what goes on behind the scenes in courts these days. Lawyers and lawyer judges are all about money and position, not justice.
Thanks for bringing the corruption to people’s attention.
Rick
Rick
September 12, 2019 at 1:05 pm
I found the following in their filings proving that they clearly showed the courts the illegality of the pictures. The courts just ignored it!!
—————————————–
PICTURES ILLEGAL
Wisconsin statute:
ATCP 42.44 Prohibited labeling. No labeling for dog or cat food may do any of the following, either directly or by implication:
(1) Make any statement or representation, including any pictorial or graphic representation, which is false, deceptive, or misleading.
Federal law – Food Drug and Cosmetic Act Section 343
Misbranded food
A food shall be deemed to be misbranded-
(a) False or misleading label
If (1) its labeling is false or misleading in any particular, or (2) in the case of a food to which section 350 of this title applies, its advertising is false or misleading in a material respect or its labeling is in violation of section 350(b)(2) of this title.
And state regulation from AAFCO (quoting the AAFCO 2016 Official Publication)
PF2.c “A vignette, graphic, or pictorial representation on a pet food or specialty pet food label shall not misrepresent the contents of the package.
AAFCO 2014 OFFICIAL PUBLICATION
Page 105 (for context)
Chapter Four
Editor-Doug Lueders, MN
Model Bill and Regulations
Section Editor- Doug Leuders, MN
Officially adopted by Association of American Feed Control Officials and Endorsed by American Feed Industry Association, National Grain and Feed Association, and Pet Food Institute
Although this Bill and the Regulations have not been passed into law in all the states the subject matter covered herein does represent the official policy of this Association.
AN ACT
To regulate the manufacture and distribution of commercial feeds in the State of ______, BE IT ENACTED by the legislature of the State of______.
…
Page 109 (the citation)
Section 6. Misbranding
A commercial feed shall be deemed to be misbranded:
(a) If its labeling is false or misleading in any particular.