Last month, the Sixth Circuit held that photographs of “premium cuts” of meat on pet food packaging were not enough to mislead a reasonable consumer into believing that the kibble was made from these high-end ingredients.  Wysong v. APN, 889 F.3d 267 (6th Cir. 2018).

In 2016, Wysong Corporation, a pet-food manufacturer, sued six other pet-food manufacturers asserting that the packaging used by their competitors was deceptive under the Lanham Act because the lamb chops and other premium cuts depicted on the product packaging did not accurately represent the products’ actual ingredients—meat trimmings.

The Sixth Circuit found the plaintiff’s allegations insufficient to state a claim.  First, the packaging was not literally deceptive because it showed the type of animal from which the food was made even if it did not indicate the precise cut of meat.  Second, the packaging was not misleading because a reasonable consumer would not believe that cheap pet food was made from the same ingredients as “people-food” found “a few aisles over” in a grocery store.  Moreover, the full list of ingredients often appeared next to the allegedly deceptive photos on the product packaging, eliminating any possibly misleading effects.

To illustrate its point, the Court analogized to a fast food drive-through menu.  A reasonable consumer would not expect a burger received from a drive-through window to “look just like the one pictured on the menu.”  Rather, the idealized imagery of the drive-through menus, like the defendants’ pet-food packaging, is nothing more than puffery.

The Court also affirmed the district court’s denial of leave to amend.

We have previously highlighted a similar decision by a federal district court in California.  In that case, the court held that prominent photographs of fruit and vegetables on the packaging of Plum Organics cereal were not deceptive.

Whether it is lamb chops and dog food or pomegranates and cereal, when it comes to stating a Lanham Act claim based on deceptive food imagery, context and common sense are key.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671.  We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.