False advertising is legally actionable because it impairs the buyer’s ability to make a rational purchasing decision. But do all literally false statements about material features of a product contained in an advertisement work to impair the purchasing decision?
The linked blogpost is mostly a recounting of claims and counterclaims made in pleadings connected to litigation against U.S. home-improvement retailers Menards and Home Depot for selling “4×4” lumber that in its relevant dimensions measures less than four inches by four inches.
While at first blush this might appear to be false advertising because the purchaser ends up getting lumber of smaller than four-by-four dimensions, consider two things:
1) “4×4” is a term of art in the home-building trade that over time has come to mean a 3.5″ by 3.5″ piece of dressed lumber; and
2) terms of art are ubiquitous features of human practices and cultures. Two examples: Older Americans may refer to a 750 ml bottle of liquor as a “fifth” of liquor—because the 750 ml size is the closest continuer to the once-common fifth-of-a-gallon (757 ml) size. (If I ask a liquor store clerk for “a fifth of George Dickel” and she hands me a 750 ml bottle, has she complied with my request or sought to cheat me out of 7 ml of whiskey?) Owing to a peculiar South Louisiana vernacular, Cajun and Creole recipes sometimes call for “shallots” but mean by this green onions—not to what the rest of us would recognize as shallots. (If I ask a produce aisle clerk in a Lafayette, Louisiana grocery store to direct me to “the shallots” and he points out the green onions, has he complied with my request or sought to deceive me?)
A thought experiment: Suppose a customer told by a hired contractor to procure 4×4 lumber for a home-improvement project enters Home Depot asking for 4×4 lumber and receives lumber actually measuring four inches by four inches. The customer is then told by a hired contractor that the lumber is improperly sized for use in home building. Question: Did Home Depot mess up when supplying 4×4 lumber? If your answer is yes, what does that mean for your evaluation of the case recounted in the linked blogpost? >>>
LINK: Home Depot, Menards Customers Cry False Advertising When They Learn “4x4s” Aren’t Actually 4×4 (by Chris Morran for Consumerist)
Talk to any contractor or carpenter — or most people who are reasonably familiar with home construction and repair — and they’ll tell you that a “4×4” piece of lumber is not actually four inches by four inches, and that it hasn’t been that way in any of our lifetimes. Yet some Home Depot and Menards customers are — literally — making a federal case out of this discrepancy, accusing the retailers of false advertising.
While both lawsuits claim that the plaintiffs have been damaged by this alleged deception, neither complaint specifies what that damage may have been, other than getting slightly less wood than they expected. For instance, there is no mention of the plaintiffs being unable to finish a home renovation or of the purchased lumber being inadequate or of lower quality.
The lawsuits even acknowledge that lumber industry standards dictate that a nominal lumber dimensions are — and have been for nearly a century — slightly larger than the actual dimensions.
In a memo in support of its motion to dismiss, the retailer argues that the plaintiffs “received exactly what they were supposed to receive – lumber that complies with applicable standards – and thus have not suffered an injury-in-fact.”
What do you think?