Wysong Corp. v. Wal-Mart Stores, 889 F.3d 267

Wysong Corporation sued six pet-food competitors under the Lanham Act, alleging packaging photos (e.g., lamb chops, chicken breasts, steaks, salmon) falsely implied the kibble was made from premium cuts when it was actually made from trimmings/by-products.
Each amended complaint asserted a single claim: false advertising under 15 U.S.C. § 1125(a).
The district court dismissed the complaints for failure to state a claim and denied Wysong leave to further amend after one round of amended complaints and a full briefing/hearing cycle.
Wysong pursued two theories: (1) the packaging was literally false; (2) the packaging was misleading (causing actual deception of a significant portion of consumers).
The district court found Wysong’s pleadings lacked sufficient contextual facts about the market, labeling, and consumer expectations to plausibly allege deception given common-sense assumptions and industry puffery.
Wysong appealed denial of leave to amend; the district court’s reasons (notice of deficiencies, prior amendment opportunity, defendants’ and court’s investment of resources) were upheld as not an abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether packaging photos are literally false	Photos communicate that products are made from premium cuts; that is false	Photos indicate only animal type, not specific premium cut; not unambiguously false	Rejected — not unambiguously deceptive; literal-falsity fails (no presumption of deception)
Whether packaging is misleading to a substantial portion of consumers	Photos mislead reasonable consumers into believing ingredients are premium meat	Reasonable consumers expect some puffery and can read ingredient lists; industry practice supports that expectation	Rejected — complaint lacks factual context to plausibly infer widespread deception; puffery and label context defeat inference
Whether denial of leave to amend was an abuse of discretion	Wysong needed another amendment to plead required context and was entitled to try	District court had given one amendment, extensive briefing/hearing occurred, and defendants/court expended resources	Affirmed — district court did not abuse discretion in denying further amendment
Whether Wysong could amend as of right under Rule 15(a)(1)	Wysong contends it had a right to amend again as of right	Defendants & court say argument not raised below	Not considered on appeal — argument waived for failing to raise below

Grubbs v. Sheakley Grp., Inc., 807 F.3d 785 (6th Cir. 2015) (standard of review for motions to dismiss)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723 (6th Cir. 2012) (literal falsity requires an unambiguous message)
Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, Inc., 185 F.3d 606 (6th Cir. 1999) (elements for Lanham Act false-advertising claim)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (use of judicial experience and common sense in plausibility analysis)
Interactive Prods. Corp. v. a2z Mobile Office Sols., Inc., 326 F.3d 687 (6th Cir. 2003) (puffery not actionable under Lanham Act)
Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489 (5th Cir. 2000) (industry practice and puffery inform reasonableness of consumer expectations)
Pernod Ricard USA, LLC v. Bacardi USA, Inc., 653 F.3d 241 (3d Cir. 2011) (label statements can dispel misleading impressions created elsewhere on packaging)
Foman v. Davis, 371 U.S. 178 (1962) (standards for granting leave to amend)
United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017) (denial of leave appropriate after full merits briefing on 12(b)(6))
Kusens v. Pascal Co., 448 F.3d 349 (6th Cir. 2006) (issues raised first on appeal are waived)