Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office

In Wysong Corp. v. APN, Inc., Nos. 17-1975-81, 2018 WL 2050449 (6th Cir. May 3, 2018), the court of appeals affirmed dismissal of a pet food manufacturer's Lanham Act claim against competitors for false advertising. The plaintiff included hundreds of pictures of pet food packaging featuring delicious-looking cuts of meat, whereas the plaintiff argued the kibble inside is actually made from less-than-appetizing leftover "trimmings." The plaintiff argued that the packaging is tricking people into purchasing the defendants' products. False advertising under the Lanham Act requires the plaintiff to show that the defendants (1) made false or misleading statements of fact about their products, (2) the product statements actually deceived or had a tendency to deceive a substantial portion of the intended audience and (3) likely influenced the deceived consumers' purchasing decisions. There are two ways to make this showing: (1) show that the defendant's advertising communicated a "literally false" message to consumers or (2) show that the defendant's messaging was "misleading," even if not literally false. The court of appeals agreed with the district court that the plaintiff failed the first test because a reasonable consumer could understand the defendants' packaging as indicating the type of animal from which the food was made but not the precise cut used, so that it was not an "unambiguously" deceptive message or literally false. The court of appeals also agreed that the plaintiff failed to allege facts supporting a plausible inference that the challenged advertisements in fact misled a significant number of reasonable consumers. Reasonable consumers know that marketing involves exaggeration or puffery and many of the packages list as ingredients animal "meal" or "by-product." Last, "[t]he defendants' product is dog food. Common sense dictates that reasonable consumers are unlikely to expect that dog food is made from the same meat that people eat" (emphasis original).

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