Have you ever noticed – or suspected – that the “regular” prices of some grocery items suddenly go up when they’re part of a buy-one-get-one-free deal, only to go back down when the deal is over?
There oughta be a law! Because it turns out there’s not. Aside from refusing to buy the promoted items, or shopping somewhere else, a federal judge says there’s absolutely nothing you can do about it.
A judge in Florida has thrown out a proposed class-action lawsuit filed by three Winn-Dixie shoppers who accused the grocery chain of running “an unfair and deceptive BOGO scheme.” In their lawsuit filed late last year, Eric Bechtel, Kevin Everson and Robbie Sayde alleged that “Winn-Dixie routinely inflates the regular price of its products just prior to placing them on BOGO.”
They provided nearly a dozen examples, including a package of chicken wings regularly priced at $11.99, that suddenly had a “regular price” of $19.99 when it was part of a BOGO sale, only to revert to its original $11.99 price after the sale. So instead of paying $11.99 for the first item and getting the other free, the “sale” had them paying $19.99 for the first item in order to get the other for “free.” In such cases, the plaintiffs argued, shoppers who might reasonably expect to buy one item at its regular price – the price regularly charged before the BOGO sale – in order to get a second one for free, instead “pay more for the first product and buy more of the product than they otherwise would to obtain the illusory ‘free’ product.”
But their attempt to force an end to what they called a deceptive practice has instead become the latest effort of its kind to fall short.
“A plaintiff only suffers actual damages if he or she pays more for a product than it is worth,” the judge ruled. “In each example, plaintiffs purchased two products for less than they would have paid if they had purchased both products at their regular price.” In other words, using the above example, buying two packages of chicken wings at the regular price of $11.99 each would have cost them a total of $23.98. But buying two packages during a BOGO sale when the “regular price” was purportedly $19.99 meant they got two packages for a total of $19.99, representing a $3.99 savings.
Another example the plaintiffs cited was more complicated. One week, a 3-pound bag of yellow onions was listed as having a regular price of $2.99, but was on sale for a dollar off. The next week, the “regular” price of the onions as part of a BOGO deal suddenly became $4.99. So buying two bags as part of the mere dollar-off sale turned out to be a better deal ($3.98 for two) than buying two bags as part of the BOGO deal ($4.99 for two).
Either way, though, it was still a deal, since both sale prices were less than the $5.98 “regular” price for two bags. “Plaintiffs allege they received less of a bargain than they thought they were getting,” the judge stated. But they knowingly paid the advertised price, they paid less than they would have had the items not been on sale, and they did not receive “less than what they paid for.”
But what about the fact that raising and lowering an item’s “regular price” depending on whether it’s on sale, amounts to dishonesty? The plaintiffs cited Federal Trade Commission guidelines that state a shopper “has a right to believe” that a store will not try to make up for the cost of a free item in a BOGO deal by “marking up the price of the article which must be purchased.” Winn-Dixie argued those were only guidelines, and not mandates. And the judge agreed. “Plaintiffs argue that deception, by itself, is a form of actual damages,” he stated. But “a plaintiff cannot obtain actual damages if the items he purchased were worth what he paid.”
He contrasted this case with others like it, in which the plaintiffs did end up on the winning side. Safeway once faced similar allegations that it raised the regular price of items in BOGO sales, and ultimately reached a settlement in which it compensated shoppers – but only in the few cases where the combined price of buying BOGO items at their higher “regular” price was more than the price of buying them both before the sale. And Walmart twice agreed to reimburse shoppers who claimed the retailer falsely inflated the weights of certain products, but in those cases, shoppers were actually deceived into paying more for less.
The Winn-Dixie shoppers, in contrast, got precisely what they paid for, the judge determined. The fact that they didn’t like how much they had to pay was, therefore, not a matter for the courts to settle.
So it may be sneaky, it may be misleading, it may even be shamefully dishonest for a store to keep changing the supposed “regular” price of an item depending on whether or not it’s on sale. But it’s apparently not illegal, as long as the sale price is still less than the lowest listed regular price, even if the savings aren’t quite as great as you’re led to believe.
So keep an eye on your store’s prices before the next sale. Depending on what pricing shenanigans they might engage in – you may decide their BOGOs are a no-go.
