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April 27, 2020

Is a Hamburger Legally a Steak?

Filed under: Food/Groceries,Retail — Edgar (aka MrConsumer) @ 5:41 am

Back in 2017, several consumers sued Dunkin’ Donuts in a class action lawsuit alleging that the company’s Angus Steak and Egg sandwich really contained a ground beef patty rather than a solid piece of steak.

Dunkin' Steak & Egg

In commercials for the product, Dunkin’ repeatedly referred to the sandwich as containing “steak.”

*MOUSE PRINT:

None — they did not make any type of disclosure that it really was a ground beef patty.

The consumers in the case argued that this was a misrepresentation, they didn’t get what they paid for, and they would have paid less had they known they were going to be served a chopped meat sandwich rather than a solid piece of Angus steak.

The lower court dismissed the suit, and the appeals court agreed in a March 2020 decision. That court quoted the definition of steak from the dictionary, in part saying:

Moreover, while the word “steak” can refer to “a slice of meat,” it is also defined as “ground beef prepared for cooking or for serving in the manner of a steak.” Classic examples of ground beef served as “steak” include chopped steak, hamburger steak, and Salisbury steak.

The court concluded that no reasonable consumer would expect to be served a piece of solid steak for the $2-$4 price that Dunkin’ was charging:

As the television advertisements themselves demonstrate, the Products are marketed as grab-and-go products that can be consumed in hand, without the need for a fork and knife. A reasonable consumer purchasing one of the Products from Dunkin Donuts in that context would not be misled into thinking she was purchasing an “unadulterated piece of meat.”

MrConsumer has to disagree. If he walked into a sub shop and ordered a steak and peppers sub, he would expect to get solid pieces of meat, or at a minimum shaved slices of beef, but not hamburger meat. Dunkin’ had to know that by calling their product a steak sandwich, some number of customers — maybe even the majority — might reasonably believe they would be getting a solid meat sandwich.




• • •

April 13, 2020

Deceptive Email Subject Lines Mislead Consumers

Filed under: Health,Retail — Edgar (aka MrConsumer) @ 5:46 am

With restaurants across the country closed, many hungry housebound people may be ordering takeout or getting home delivery from their favorite eaterie. And to get their share of business, restaurants are sending us enticing emails to increase business.

Promoting $5 or $10 off your next order is a great deal and a common theme of these offers. But, when you open the email the offer is not quite what you envisioned.

*MOUSE PRINT:

Panera $5 off

So, only if you spend $40 or more at Panera, will they give you $10 off.

 

*MOUSE PRINT:

$5 off Qdoba

MrConsumer’s hope that he could get an $8 burrito from Qdoba for only $3 with this $5 off offer was dashed when opening the email to learn that a $25 minimum purchase was required.


Restaurants are not alone in playing this deceptive $5 off game. The leading drug chains, CVS and Walgreens, are both trying to lure in shoppers with their own $5 off offers.

 

*MOUSE PRINT:

CVS $5 off

———————-

Walgreens $5 off

Why can’t these companies just play it straight and say in their subject line “$5 off a $30 purchase” or whatever the minimum purchase is?




• • •

April 6, 2020

Is This the Way to Give Workers a Bonus?

Filed under: Business,Food/Groceries,Retail — Edgar (aka MrConsumer) @ 5:37 am

No doubt, many people are facing personal financial hardships because they have lost their job or are working reduced hours. But many companies are stepping up continuing to pay workers or even offering extra pay.

One such company is the closeout retail chain Ocean State Job Lot (OSJL) with 139 stores throughout the Northeast. In an email to customers last week, their CEO told of hundreds of thousands of dollars of in-kind contributions of food and protective medical equipment their company has made.

He also noted a $2 an hour pay increase for workers, an additional bonus, and a more generous employee discount program.

There was one unusual disclosure in the letter, however.

*MOUSE PRINT:

OSJL- letter

The company is financing the bonus to employees by automatically tacking on a two-percent surcharge to every shopper’s bill at the checkout. While you can opt-out, how many people even realize that they are being surcharged in the first place? Many won’t see the signs nor have carefully read the email. And how awkward and embarrassing to have to say to the very person this money is intended to help that you don’t want to contribute.

While we applaud OSJL for its very generous contributions to hospitals and veterans organizations, in our view, the customer contribution for an employee bonus should be voluntary — opt-in — just like this chain does for the other causes it asks customers to support during the year.

Contrast their surcharge approach with the voluntary method being taken by the Daily Table in Boston. Their nonprofit mini-supermarkets, created by the former CEO of Trader Joe’s, buy soon-to-expire food from manufacturers and stores. They cook some of it and prepare single-portion meals for the lower-income shoppers that frequent their stores. Last week, the Daily Table sent out an urgent email plea to customers asking them to help pay their employees an emergency aid bonus of $2 an hour which was not in their budget. MrConsumer was happy to contribute.

So what do you think? Should stores be able to automatically tack on a surcharge to their customers’ bills to help finance an employee bonus, or should they simply just ask shoppers to support their employees through voluntary contributions?




• • •

March 30, 2020

Purell Maker Sued for Unsubstantiated Claims

Filed under: Health,Retail — Edgar (aka MrConsumer) @ 6:21 am

Purell labelJust at the time when consumers nationwide are clearing the store shelves of Purell comes word that the Food and Drug Administration and several private lawsuits are charging the company with making unsubstantiated health claims for its products.

In January, the FDA sent a warning letter to GOJO Industries alleging that as marketed and advertised PURELL® Healthcare Advanced Hand Sanitizers are unapproved new drugs because of claims like:

  • “Kills more than 99.99% of most common germs that may cause illness in a healthcare setting, including MRSA & VRE”

  • “In a recent study, student absenteeism was reduced by 51% when PURELL hand hygiene products were used in conjunction with a curriculum to teach kids about good hand hygiene[] . . . 10% Less Teacher Absenteeism”

  • “Even though norovirus is highly contagious, there are ways you can reduce the risk of its spread. … Alcohol-based hand sanitizers with at least 60% alcohol can be used in addition to handwashing . . .”

  • “Is PURELL® Advanced Hand Sanitizer Effective Against Ebola? … [WHO and the CDC] are recommending the use of alcohol-based hand sanitizer as a preventive measure during this outbreak . . .”
  • The FDA goes on to say that claims like these suggest that Purell is intended to prevent or reduce disease from Ebola, norovirus, and the flu, but the agency is not aware of any studies that correlate killing bacteria or viruses on the skin with a corresponding reduction of those diseases. As such, because Purell is intended for the “diagnosis, cure, mitigation, treatment, or prevention” of disease and thus by definition that makes it is a drug. And an unapproved new one at that. New drugs need to be FDA-approved before being sold.

    The maker of Purell posted a response to the FDA on its website, saying in part:

    It is our responsibility to ensure that we comply with all requirements of FDA regulations and federal law, and we take that responsibility very seriously. To that end, we have begun updating relevant website and other digital content as directed by the FDA and are taking steps to prevent a recurrence.

    At least three consumer class action lawsuits (most recent one here) have been filed against GOJO claiming consumers were misled because the company made 99.99% effectiveness claims without having reliable substantiation.




    • • •

    March 23, 2020

    Sometimes No Disclosure Is Better

    Filed under: Food/Groceries,Retail — Edgar (aka MrConsumer) @ 6:06 am

    Who would think that Mouse Print* would ever say that less disclosure can sometimes be better than more disclosure? There aren’t too many cases where this is true, but here is one of them.

    In preparation for St. Patrick’s Day two weeks ago, MrConsumer checked out the bargains on corned beef at various local supermarkets. Point cut corned beef was on sale for between $1.47 and $1.69 a pound at the low end. As we have shown before, the name of the game when buying cheap corned beef is to check how much water (“solution”) is injected into the beef.

    Here are a couple of brands that have 35% water. In other words, you are paying $1.49 a pound for packages that are one-third water and only two-thirds beef.

    corned beef

    corned beef

    MrConsumer did not want to be burned again by those brands, so he hightailed it over to another store offering corned beef for $1.69 a pound. When he looked to see how much water was injected into the brands they carried, the information was conspicuously missing.

    *MOUSE PRINT:

    corned beef packages

    Where was the percentage disclosure like the other brands had? It was nowhere on these packages. I asked the meat man if he knew (he didn’t) and whether he could check the carton. There was no disclosure there either. So, what would you do? Buy one of the unmarked packages and take a chance or take a pass? I left the store corned beef-less.

    Since one of the brands was made in Massachusetts, I called headquarters to ask the million dollar question. After about 10 minutes of the receptionist presumably trying to find someone who knew the answer, she finally came back on the line and said “20-percent.”

    Why didn’t the company put this on the label? It is a big selling point compared to the competition.

    The answer is they don’t have to when the product complies with the federal standard of identity for corned beef which allows, by definition, for there to be up to 20% water in raw corned beef.

    *MOUSE PRINT:

    § 319.101 Corned beef brisket.
    In preparing “Corned Beef Brisket,” the application of curing solution to the beef brisket shall not result in an increase in the weight of the finished cured product of more than 20 percent over the weight of the fresh uncured brisket.

    Only if a product like corned beef does not meet the standard of identity (20% or less of water) does there have to be a clear disclosure on the principal display panel as part of the name stating the percentage of water/solution in the product, as the top group of products shows. [See 9 CFR § 317.2 (e)(2)(i)]

    So there you have it. Because the two unlabeled brands above did not exceed the amount of water allowed, they didn’t have to tell consumers how much was actually in it (although it really would have been smart to do so). In this case then, buying raw corned beef with no disclosure is a smarter move than purchasing the ones that tell you how much water has been injected.




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