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,
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