Wysong Corp. v. Apn, Inc., 889 F.3d 267

Background

Wysong, a pet-food manufacturer, sued six competitors under the Lanham Act, alleging their packages used photos of premium cuts (e.g., lamb chops, T-bone steaks) while the kibble was made from lower-quality trimmings and by-products.
Wysong alleged more than 300 challenged labels and included sample photographs in its complaints.
District court dismissed the complaints for failure to state a claim and denied further leave to amend; Wysong appealed.
The appeals court reviews de novo whether the complaints pleaded facts that plausibly state a Lanham Act false-advertising claim.
The pleadings relied on two theories: (1) literal falsity (photographs convey that the product contains premium cuts) and (2) misleading advertising (photographs cause a significant portion of reasonable consumers to be deceived).
The district court had previously allowed one amendment cycle, held a lengthy hearing, and explained denial of further amendment based on notice of deficiencies, wasted defendant and judicial resources, and prior opportunities to cure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether packaging is literally false under the Lanham Act	Photos communicate product is made from premium cuts, which is untrue	Images denote animal type (e.g., lamb, chicken), not specific cut; not an unambiguous false statement	Rejected — not unambiguously literal falsehood; reasonable consumers could infer only animal type, not cut
Whether packaging is misleading (tendency to deceive a substantial portion of consumers)	Images cause reasonable consumers to believe product contains premium ingredients; some pet-food brands do use premium ingredients, so deception is plausible	Context (ingredient lists, industry puffery, common consumer expectations) dispels claim; no plausible allegation consumer deception by a significant portion	Rejected — complaints lacked contextual facts to plausibly infer widespread deception; puffery and labels listing "meal"/"by-product" undercut the claim
Whether district court abused discretion by denying further leave to amend	Wysong needed another chance to add facts and context to support deception theory	District court had given one amendment, extensive briefing, and hearing; further amendment would unfairly prejudice defendants and waste resources	Rejected — no abuse of discretion; denial proper given prior opportunities and wasted resources
Whether Wysong could amend as of right under Rule 15(a)(1) after dismissal	Wysong argued entitlement to amend as of right on appeal	Defendants opposed; district-level timing issue	Not considered — Wysong failed to raise this issue below; appellate court declined to consider it

Key Cases Cited

Grubbs v. Sheakley Grp., Inc., 807 F.3d 785 (6th Cir.) (standard of de novo review for 12(b)(6) dismissal on appeal)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (6th Cir.) (literal falsity requires unambiguously false message)
Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, Inc., 185 F.3d 606 (6th Cir.) (elements for Lanham Act false-advertising claim)
Ashcroft v. Iqbal, 556 U.S. 662 (pleading plausibility and use of judicial experience/common sense)
Interactive Prods. Corp. v. a2z Mobile Office Sols., Inc., 326 F.3d 687 (6th Cir.) (puffery is not actionable under Lanham Act)
Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489 (5th Cir.) (industry practice and puffery considerations)
Pernod Ricard USA, LLC v. Bacardi USA, Inc., 653 F.3d 241 (3d Cir.) (misleading impression can be dispelled by other label statements)
Foman v. Davis, 371 U.S. 178 (standards for leave to amend pleadings)
United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir.) (denial of leave after full briefing and decision may be appropriate)
Kusens v. Pascal Co., 448 F.3d 349 (6th Cir.) (issues raised first on appeal are not considered)