They’re mad as hell and not going take it anymore. That seems to be the case these days when shoppers have had enough of retailers’ broken promises. Over the next three weeks, we will examine three recently filed class action lawsuits again some big name chains. First up — Safeway.
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Everyone loves buy one, get one free (BOGO) offers when they are legitimate. But one Washington state consumer says Safeway is not playing fair because she alleges the supermarket chain raises the price on items that are offered as BOGO specials.
*MOUSE PRINT:
In her complaint, the consumer claims:
Contrary to the language of Defendants’ free product offers, the BOGO products are not actually free. Instead, Defendants increase the price of the first unit of the product to cover the cost of the second purportedly “free” unit of the product.
Throughout the class period Defendants routinely increased the regular retail price of items when offering them in BOGO sales. For example, during the class period, Safeway sold boneless, skinless chicken breasts to Club Card members for $2.99 per pound. Within the same month, Safeway sold seasoned boneless, skinless chicken breasts for $5.99 per pound in a Buy 1, Get 1 Free promotion. Thus, Club Card consumers overpaid by $3.00 per pound for any BOGO chicken purchase.
Other examples in the lawsuit don’t give clear-cut examples demonstrating that the one purchased item had doubled in price to make up the cost of the free item.
And worse for the consumer and her lawyer, they may not understand the variability of retail pricing. Stores sell goods at a variety of different prices. In the case of the chicken breasts above, for example, it is unlikely that $2.99 was the regular price of that item. It perhaps was on sale for $2.99 a pound one particular week. So to suggest that whenever Safeway runs a BOGO sale on chicken breasts it should have been $2.99 for the first package and the second free is just plain wrong.
Regular prices have to be bona fide. Generally speaking, products must be offered at full regular price for a substantial period of time and then they can be periodically discounted. In the case of buy one, get one free offers, under Federal Trade Commission rules, retailers cannot jack-up the price of the purchased item beyond its regular price.
So, if the court finds that Safeway only charges $5.99 a pound for chicken breasts when offered on a BOGO basis, then the consumer has a great case. But if it really charges $5.99 a pound “regularly” when not on sale, but occasionally has a sale for $2.99 a pound, the case may fail.
Of note, however, is a case that Safeway and Albertsons have recently agreed to settle for $107-million after similar allegations were made about buy one, get one free meat sales in Oregon. A similar suit complaining about Safeway’s BOGO practices was also filed in California in June.
Next week, we’ll examine a complaint filed against Best Buy for not honoring its price guarantee.
Recently, two California consumers filed a