September 17, 2021

Volume XI, Number 260

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Don’t Sweat It: 8th Circuit Affirms Dismissal of Deodorant Class Action

The Eighth Circuit recently affirmed the dismissal of a class action alleging that Unilever’s differential pricing of men’s and women’s antiperspirants violated the Missouri Merchandising Practices Act (MMPA). In doing so, the Court found plaintiff’s claims wrongly equated marketing targeted to women with point-of-sale price discrimination by gender (i.e. charging a different price for the same product based on the gender of the purchaser, at the time and place where the retail transaction is completed).  Schulte v. Conopco, Case No. 20-2696 (8th Cir. May 18, 2021).

Dove “Men + Care” is an antiperspirant line primarily marketed to men, with five different scents. A differently branded product, Dove “Advanced Care,” is marketed primarily to women. Dove Advanced Care  is offered in a range of fifteen different scents – all of which are different from the scents available with the Men + Care product. The two lines have distinct packaging and labels, and are often priced differently.  Plaintiff alleged she purchased an Advanced Care antiperspirant stick from each of the six defendant retailers, and paid a premium of up to $1.00 per stick. According to plaintiff, this price differential constituted a “pink tax,” which she claimed violated the MMPA’s prohibition on “unfair practices.”

The district court dismissed the complaint, noting “[w]omen are able to purchase any of the Dove antiperspirants for the same price as men regardless of the scent or variety.” 2020 U.S. Dist. LEXIS 126194 (E.D. Mo. 2020).  On appeal, the Eighth Circuit affirmed. Without reaching the question of whether the MMPA does, in fact, prohibit gender discrimination in pricing, the Eighth Circuit found plaintiff incorrectly equated gender-based marketing with gender discrimination. According to the Court, to plausibly allege gender discrimination, plaintiff needed to plausibly allege that the only difference between “Men + Care” and “Advanced Care” was the gender of the consumer. Noting the various other differences between the two lines (including differences in scents, packaging, and labels), the Court found plaintiff failed to do so. Instead, the Court determined these various differences make the different products potentially attractive to different customers with different preferences.

The Eighth Circuit also emphasized the difference between marketing a product to appeal to a specific gender, and actually charging different point-of-sale pricing according to the consumer’s gender. The Court found plaintiff’s position incorrectly assumes that women must purchase products marketed to their gender, due to (in plaintiff’s words) “social conditioning and societal expectations regarding what is ‘feminine’ and ‘masculine.’” The Court noted that if plaintiff’s primary concern was price, she was free to purchase the cheaper “Men + Care” antiperspirant line. Plaintiff chose not to because, as stated in her brief, she did not want to “smell like a man.” Thus, the court concluded, plaintiff’s grievance was that she did not want to pay extra for her preference. But preference-based pricing, the Court said, was not in and of itself “unfair.”

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 181
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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Jennifer Yang, Litigation Law, Proskauer Law Firm
Associate

Jennifer Yang is an associate in the Litigation Department. She is a commercial litigator with a particular emphasis on false advertising and other intellectual property disputes, including Lanham Act and consumer class action false advertising litigation, advertising challenges before the National Advertising Division, as well as trademark, trade secret and copyright litigation. She has experience representing clients in a variety of industries, including medical device companies, consumer products companies, fashion retailers and art foundations.

212-969-3394
Anisha Shenai-Khatkhate Litigation Attorney Proskauer Rose Law Firm
Associate

Anisha Shenai-Khatkhate is an associate in the Litigation Department at Proskauer Rose LLP.

212.969.3574
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