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In MA, Clothing is Not Taxed, But This Jacket Was

We got an email recently from Bin D. questioning whether she had been wrongfully charged sales tax by REI on a biking jacket she bought for her husband.

REI jacket

In Massachusetts, clothing and footwear up to $175 is free of sales tax year-round. Lucky us. Otherwise the sales tax is 6.25-percent. But our unlucky consumer was charged tax anyway.

She questioned the erroneous charge three times with REI, particularly after realizing that other sellers did not charge tax on this jacket. Here is their response:

We will not provide a refund of tax for this order. This is a sports specific jacket and as a result tax levied is correct. The clothing tax exemption does not apply to clothing and footwear that are primarily designed and used for athletic activities or for protective use and that are normally [not] worn except for such purposes.

We asked Boston’s ace consumer reporter at WCVB, Ben Simmoneau, to take on the case and hopefully get REI to stop charging sales tax on exempt items like that jacket.

Well, despite the TV news story, the company continues to buck the system not fully understanding the Massachusetts tax law.

The actual statute, MGL. c. 64H, Sec. 6 provides:

*MOUSE PRINT:

(k) Sales of articles of clothing, including footwear, intended to be worn or carried on or about the human body up to one hundred and seventy-five dollars of the sales price on any article of clothing. For the purposes of this section clothing or footwear shall not include special clothing or footwear primarily designed for athletic activity or protective use and which is not normally worn except when so used.

The Massachusetts Department of Revenue explains the law in plain English:

Tax Exempt:
… jackets, windbreakers

While apparel designed solely for athletic or protective use is taxable, items that are also suitable for everyday use are exempt.

Taxable:
… athetic uniforms (baseball, football, etc.), Clothing primarily designed to protect from physical injury…

In our view, there is nothing about this jacket that would make it unsuitable for everyday wearing, and just because a manufacturer decides to market it as a “cycle jacket” doesn’t limit its use because of its design, looks, or functionality.

We think REI is incorrectly applying the law in this case.

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Do Political Influencers Have to Disclose Paid Posts?

More and more political campaigns are trying to get their messages out to younger generations. How do they do this? Both major parties are paying internet influencers to create content, usually video messages, in various social media like TikTok, Instagram, YouTube, X, and others.

So the question is, do these influencers have to disclose to viewers when they were paid to espouse a particular point of view (which probably was there own anyway)? Here’s what one influencer says:

And here’s what the law says. The Federal Trade Commission has specific rules requiring infuencers to clearly disclose material connections they have with companies if they were paid for their opinions. In a commercial context, they believe that since this is a kind of paid advertising, anyone seeing it has a right to know what they are seeing or hearing may have been influenced by the money the person was paid.

But the FTC regulates trade and commerce and opinions spouted by internet influencers about politcal issues and figures is not within their jurisdiction.

The Federal Election Commission (FEC) oversees political advertising. Last December they endeavored to modernize regulations governing internet communications, but decided not to require internet influencers to disclose to viewers and readers if they were paid by a political entity. Some of commissioners at the FEC disagreed saying this was a missed opportunity.

Some states have begun requiring social media influencers to disclose if they were paid to espouse a particular political opinion on a candidate or issue. Last year, California passed such a law. And in June, the Texas Ethics Commission passed a requirement that influencers have to disclose if a post or video is a paid political advertisement.

Various social media platforms have their own rules that posters must follow.

*MOUSE PRINT:

TikTok has the strictest policy — banning political advertising entirely, including branded political content from creators. Instagram and Facebook, owned by Meta, allow for paid political ads and sponsored political content from creators as long as the group is registered in its ad library. … And X, formerly Twitter, lifted its political ads ban last year. — Politico

What is your opinion? Should influencers who are paid to espouse a particular political point of view disclose that fact, whether the law requires it or not?

[Please do not turn the comments into a Trump vs. Harris, or democrats vs. republicans discussion.]

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Robitussin Puts Non-Drowsy Lawsuit to Bed

In 2022, two different consumers sued the makers of Robitussin alleging that package claims of the products being non-drowsy were false and misleading. (See complaint.)

In particular, the suits said that one of the active ingredients in these cough suppressants, dextromethorphan (DXM), was actually known to cause drowsiness. Further, the complaints alleged that the “drug facts” disclosure on the back of the boxes did not warn about possible drowsiness.

*MOUSE PRINT:

Robitussin DM

The plaintiffs also cited various medical studies supporting the fact that DXM could make one sleepy, and pointed out that the Federal Aviation Administration advised pilots not to fly if they have taken it.

In 2023, the case was decided in favor of the manufacturer on the theory that the state law consumer violations cited were pre-empted by the federal Food, Drug, and Cosmetic Act governing drug products like this. The consumers appealed.

Despite that, the parties negotiated with each other since the court decision, and came to a settlement of the claims for $4.5-million. The company has agreed to discontinue the non-drowsy claims. Purchasers as far back as 2016 may be entitled to between $1.50 and $4.75 per claim. More details will be available after a judge signs off on the agreement.

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