Davis & Norris LLP represents Wysong Corporation, a small pet food manufacturer based in Michigan. Wysong has filed six lawsuits against the leading pet food manufacturers for unfair competition in the use of photographs on their pet food packages. Defendants in the six cases are Mars, Nestle-Purina, Hill’s, Big Heart, Ainsworth, and Walmart.
In the Mars case (all six cases are substantially similar), Wysong alleges:
The defendant, Mars Petcare US, Inc. (Mars), uses photographs of chicken breasts, premium cuts of beef, lamb chops, salmon filets, premium vegetables and other premium foods on pet food packages, purporting to show what is contained in those packages. Typically, the packages contain the opposite of what is portrayed:
(A). Chicken breasts are pictured, but the actual ingredients are less costly trimmings and other parts minus the chicken breasts.
(B). Premium cuts of beef are pictured, but the actual ingredients are less costly trimmings and other parts minus the premium cuts of beef.
(C). Lamb chops are pictured, but the actual ingredients are less costly trimmings and other parts minus the lamb chops.
(D). Salmon filets are pictured, but the actual ingredients are less costly trimmings and other parts minus the salmon filets.
Not only that, but:
In some products, the primary ingredients are, instead of the premium cuts pictured, viscera, bones, feet, heads, and other animal by-products. In other cases, the primary ingredients are non-premium cuts taken from a completely different animal than that depicted. In short, the premium meats, fish and vegetables portrayed on Mars’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.
Wysong chose to assert claims against Mars and the other defendants under the federal Lanham Act, which allows those hurt by unfair competition to recover the guilty party’s profits derived from their unfair acts in the marketplace. Wysong explains why:
In order to compete against a company that uses such deceptive photographs and lower cost ingredients to gain advantage in the market, Wysong Corporation (Wysong) has only two options. It can even the playing field by engaging in the same deceptive conduct, or it can bring this action. Some competing companies have chosen the first option. Wysong chooses the second.
The essence of Wysong’s claims against its giant competitor pet food companies is that the ingredients depicted in the photographs are much more expensive than the low-cost ingredients that actually go into the bag or can. Wysong’s lawsuit says:
The following are typical of the cost savings enjoyed by Mars:
– Chicken breasts like those pictured have a wholesale cost in the range of $1.50 per pound, but the lower grade chicken Mars actually puts in the packages costs approximately $.12 per pound.
– Cuts of beef like those pictured have a wholesale cost in the range of $4.00 per pound, but the lower grade beef placed in the packages costs approximately $.14 per pound.
– Cuts of lamb like those pictured have a wholesale cost in the range of $6.50 per pound, but the lower grade lamb placed in the packages costs approximately $.43 per pound.
– Salmon filets like those pictured have a wholesale cost in the range of $3.50 per pound, but the lower grade salmon placed in the packages costs approximately $.13 per pound.
Pretty bad, but it gets worse, according to the complaint:
On some pet food products, Mars depicts premium cuts of chicken, beef, lamb, or fish but the primary animal ingredient is a low cost and low grade animal ‘by-product.’ The standard definition of ‘meat by-products’ excludes by definition the prime cuts shown in the photographs and instead includes such things as stomachs, intestines, blood, bone, spleen, kidneys, udders and lungs. The standard definition of ‘poultry by-products’ includes internal organs, viscera, heads and feet. The use of animal ‘by-product’ instead of the premium cuts in the photographs is particularly egregious. These ingredients are derived from the cheapest part of the animal.
The lawsuit says that sometimes the pictures do not even depict the species of animals from which the bulk of the food is made:
On some products Mars outrageously depicts premium cuts from a particular animal when the primary animal ingredient in the product is not only of a lower cost, it is from a completely different species of animal.
The six lawsuits were filed in federal court in Michigan, where Wysong is headquartered. More lawsuits are forthcoming against other pet food makers for allegedly similarly misleading photos.
The defendants have moved to dismiss the cases, because that’s what defendants do. We believe the court should deny defendants’ motions and let these cases go to trial.
A version of this article was original published by Animal Advocates of Alabama, Inc. Re-printed by permission.