Retail

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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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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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How Skimpflation Works in Restaurants

In October last year, Red Robin announced an upgrade — that it had a “new and improved lineup of gourmet burgers” that were “juicier and more flavorful.”

This August, Red Robin further announced a limited time promotion for a gourmet cheeseburger and unlimited fries for $10. No doubt, this is a pretty good deal given fast food prices and portion sizes today.

Red Robin $10 promotion

One Red Robin regular, WiseSofa1748, commented on their burgers in the following post, saying they are not as good as they used to be because the reason they are juicier is that they are fattier.

The new burgers they use suck. The old ones they had for years and years were so good. I asked the store manager when I last went and she told me it was really to cut costs, they went to a less lean, cheaper cut of beef that allowed it to be “juicier” aka more fat and slightly bigger bc its a crappier cut. It doesn’t taste near as good. Same for the bun and cheese she said, both were swapped out and Red Robin claimed it was for taste but as always it was to save a buck.

Are the consumer and the manager right? We did a little detective work to compare the current nutritional disclosures for their gournet cheeseburger with the previous listing from a year earlier, excerpted below.

*MOUSE PRINT:
Red Robin Nutritional comparison

Indeed, the amount of fat content went up, while the amount of protein went down. Since the company announced that it was making its burgers bigger and juicier last year, that could account for the increase in fat. However, the amount of protein should have gone up too if the company maintained the same lean to fat ratio.

We made multiple requests of the company to find out if they made the alleged changes to their burgers, but they did not respond.

While the media focuses on shrinkflation a lot these days, skimpflation is even more insidious. With shrinkflation, at least you can objectively discover when a product shrinks. But with skimpflation, product tweaks or reformulations are not generally announced or easy to discern.

We don’t know the recipes used by restaurants, the exact portion size you normally get, the grades of meat they buy, the quality or quantity of all the ingredients used in a dish, etc. So it is even easier to tinker with these things and most consumers would be none the wiser.

If you spot an example of skimpflation, please send the details and any proof you can unearth to Edgar (at symbol) MousePrint.org. Thanks.