Anderson v. Discount Drug Mart, Inc. , 2021 Ohio 693 ( 2021 )

[Cite as Anderson v. Discount Drug Mart, Inc., 2021-Ohio-693.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
HOLLEE J. ANDERSON, :
Plaintiff-Appellant, : No. 109811
v. :
DISCOUNT DRUG MART, INC., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 11, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-909754
Appearances:
Cavitch, Familo & Durkin Co., L.P.A., Timothy D. Johnson
and Robert A. West, Jr., for appellee.
Jeremy Gilman, Attorney, L.L.C., and Jeremy Gilman and
Harvey & Abens Co., L.P.A., and Matthew B. Abens, for
appellant.
EILEEN A. GALLAGHER, J.:
Plaintiff-appellant Hollee Anderson appeals from the trial court’s
order granting the motion for summary judgment filed by defendant-appellee
Discount Drug Mart, L.L.C. (“Discount Drug Mart”) and denying her motion for
summary judgment on her complaint for declaratory and injunctive relief under the
Ohio Consumer Sales Practices Act (“CSPA”), R.C. Chapter 1345.
Finding no merit to the appeal, we affirm the trial court.
Procedural and Factual Background
Discount Drug Mart is a full-service drug store that operates more
than 70 retail stores in Ohio, including more than a dozen stores in Cuyahoga
County. On January 17, 2019, Anderson filed a complaint in the Cuyahoga County
Court of Common Pleas seeking declaratory and injunctive relief under the CSPA
based on allegations that Discount Drug Mart’s multiple-unit pricing promotions —
e.g., ten for $10 — misrepresent that “a specific price advantage exists” when “it does
not,” constituting a deceptive act or practice under R.C. 1345.02(A) and
1345.02(B)(8).
In her complaint, Anderson alleged that Discount Drug Mart
represented to consumers, “through printed and online weekly ads and in-store
signage” advertising its multiple-unit pricing promotions, that if they purchased a
specific number of units of a particular product during the time the promotion was
running, they would receive a specific discount on that number of units, i.e., that a
“specific price advantage” existed to purchasing the specific number of units
advertised. The complaint alleged that, “[i]n actuality,” the “specific price
advantage” advertised “did not exist” because a consumer could have paid “the same
proportionate discounted price” if they purchased fewer quantities of the advertised
product during the promotion period. The complaint further alleged that “[b]y
representing that a specific price advantage existed to buying [the specific number
of units advertised] when no such specific price advantage actually existed,”
Discount Drug Mart had engaged in unfair or deceptive acts or practices in
connection with consumer transactions in violation of R.C. 1345.02(A).
The complaint included several examples of multiple-unit pricing
promotions from Discount Drug Mart’s weekly ads and alleged that Discount Drug
Mart “has planned, advertised and implemented hundreds, if not thousands, of
analogous price promotions for many different products over the years, including
during 2017 and 2018, and continues to do so.” One such example involved a sale
on PictSweet Simple Harvest frozen vegetables that ran from November 14, 2018
through November 20, 2018:
7. One of the price promotions identified on * * * [Discount Drug
Mart’s] weekly ad is that between November 14, 2018 and November
20, 2018, [Discount Drug Mart] was selling 10 12-ounce bags of
assorted PictSweet Simple Harvest vegetables for $10.00 and that
consumers would “Save 9.90 0n 10.”
8. In this weekly ad, [Discount Drug Mart] represented to consumers
that a specific price advantage existed to their buying 10 bags of those
vegetables during this price promotion; namely, they would “save 9.90
on 10.”
9. In actuality, however, this specific price advantage did not exist,
because consumers shopping at [Discount Drug Mart] stores while this
price promotion was running could have paid the same proportionate
discounted price of $1.00 per bag for those same vegetables even if they
had bought fewer than 10 bags of them from [Discount Drug Mart]
during that time.
10. They could, for example, have obtained the same price advantage
had they bought seven bags, or three bags, or one bag of those
vegetables from [Discount Drug Mart] during that time.
11. [Discount Drug Mart], however, failed to inform consumers that
they could have obtained the same price advantage had they bought
fewer than 10 bags of those vegetables during this price promotion.
12. Instead, [Discount Drug Mart] represented to consumers that a
specific price advantage only existed if they bought 10 bags of those
vegetables from [Discount Drug Mart] during this price promotion.
The complaint did not allege that Anderson had seen any of the
advertisements described in the complaint, that she had made any multiple-unit
purchases based on Discount Drug Mart’s multiple-unit pricing promotions or that
she (or anyone else) had been misled or deceived by any of Discount Drug Mart’s
multiple-unit pricing promotions.
Anderson requested that the trial court (1) issue an order declaring
that, by engaging in these types of multiple-unit pricing promotions, Discount Drug
Mart “has committed, and continues to commit, unfair or deceptive acts or practices
in connection with consumer transactions in violation of R.C. 1345.02(A),” (2) issue
a permanent injunction enjoining Discount Drug Mart from committing “the unfair
or deceptive acts or practices” described in her Complaint and (3) award her
attorney fees and costs.
Discount Drug Mart filed an answer, admitting that the “reduced
price” in the multiple-unit pricing promotions identified in Anderson’s complaint
“was applicable to the item irrespective of the quantity purchased by a consumer
during the applicable time period.” However, Discount Drug Mart denied that it had
engaged in, or was engaging in, any unfair or deceptive acts or practices in
connection with its sales promotions and asserted that the advertisements at issue
were “truthful” and “non-deceptive.” Discount Drug Mart also raised various
affirmative defenses.
During discovery, Anderson conducted the deposition of David
Bergman, Discount Drug Mart’s vice president of advertising. Bergman, who had
worked at Discount Drug Mart for 30 years, was produced for deposition in response
to a Civ.R. 30(B)(5) deposition notice as Discount Drug Mart’s designee. Bergman
testified that Discount Drug Mart regularly runs multiple-unit pricing promotions,
which he described as “two for, three for, four for, five for” promotions, and that it
advertises these promotions online and in weekly circulars, which are mailed to
potential customers through a flyer distribution service. He indicated that when
advertising its multiple-unit pricing promotions, Discount Drug Mart states the total
cost and total savings that would apply if a customer were to purchase a specific
number or “multiple” of a given product at the then-discounted unit price — e.g., 10
for $10, resulting in a savings of $9.90 on 10, for a product with a regular price of
$1.99 per unit.
Bergman testified that under Discount Drug Mart’s multiple-unit
pricing promotions, customers pay the same pro-rata discount price per unit during
the promotion period regardless of the quantity of units purchased. In other words,
Discount Drug Mart does not require customers to purchase the specific multiple of
units identified in the multiple-unit pricing promotion in order to receive the
discounted price; customers pay the same discounted price per unit regardless of
the quantity of units purchased.
During his deposition, when questioned regarding a multiple-unit
pricing promotion on 12-ounce bags of PictSweet Simple Harvest frozen vegetables
that ran from November 14, 2018 through November 20, 2018, Bergman explained
specifically how Discount Drug Mart’s multiple-unit pricing promotions work:
Q. * * * Between November 14, 2018 and November 20, 2018,
[Discount Drug Mart] was selling ten 12-ounce bags of those PictSweet
Simple Harvest vegetables for $10, and [stating] that consumers would
save $9.90 on ten units of those vegetables, correct, ten bags of those
vegetables?
A. That’s correct.
Q. That means that the unpromoted price of those vegetables was
how much per bag?
A. $1.99, outside of the window stated.
***
Q. All right. Now, would you agree with me that [Discount Drug
Mart] represented to consumers in its weekly ad that between
November 14, 2018 and November 20, 2018, [Discount Drug Mart] was
selling ten 12-ounce bags of these PictSweet Harvest vegetables for $10,
and that consumers that week would save $9.90 on ten bags?
A. That’s correct.
***
Q. [I]f a [Discount Drug Mart] customer, during the time period
that that price promotion was pending, bought at [Discount Drug
Mart], for example, seven bags of those PictSweet Simple Harvest
vegetables instead of ten, how much would she or he have paid for those
seven bags of vegetables?
A. $7.
Q. And what about if they bought four bags during that promotion
period, how much would he or she have paid?
A. $4.
Q. And what if they bought two bags instead of ten?
A. $2.
Q. What about if they bought a single bag of those vegetables
instead of ten?
A. $1, and the savings would be proportionate from 9.90, $9.90
down to .99, in your examples.
Q. So consumers would have bought any quantity of bags of those
PictSweet vegetables, during that promotion period, for a dollar a bag
and didn’t have to get ten bags of those vegetables to reap the economic
benefit of the promotion; is that correct?
A. That’s correct.
***
Q. * * * In this weekly ad * * * did [Discount Drug Mart] inform
consumers that they would have been able to derive the same price
advantage had they bought fewer than ten bags of those vegetables
during that time?
***
A. No.
Q. Did consumers shopping at [Discount Drug Mart], during the
time this promotion was pending, derive a specific price advantage
from buying ten bags of these PictSweet vegetables during the price
promotion?
A. They went home with $9.90 less [sic] than they would have paid
outside of the promotional window.
Q. Was there a specific price advantage to consumers from buying
ten bags, as opposed to * * * buying four bags or two bags or one bag?
[Defendant’s counsel]: Objection. Go ahead.
A. Savings was proportionate.
Q. My question to you was, was there a specific price advantage to
consumers during the week this price promotion was running * * * to
their buying ten bags of these vegetables as opposed to any other
quantity?
[Defendant’s counsel]: Objection. Go ahead.
A. No.
Bergman testified that in addition to advertising multiple-unit pricing
promotions online and in its weekly circulars, Discount Drug Mart also uses in-store
“temporary price reduction tags” (“TPR tags”) that are placed next to a product’s
regular-price shelf tag, “signifying the difference in price during the promotion
between that same merchandise and the regular price of the item.” These TPR tags
typically display the temporarily reduced, multiple-unit promoted price and the
total cost savings — e.g., buy 3 units of a product for $Y and “save X dollars on three.”
Bergman acknowledged that Discount Drug Mart does not
specifically inform customers, in its multiple-unit pricing promotions, that they will
receive the same pro-rata discount per unit on products purchased during the
promotion period regardless of the quantity of units purchased. However, he
indicated that “[w]hen there is a mandatory buy level” under one of Discount Drug
Mart’s promotions, that fact is expressly stated. In such cases, “[y]ou get the single
unit price buying less.”
Bergman testified that Anderson was a “regular customer” at
Discount Drug Mart’s Strongsville store, that she had a “Courtesy Plus” card for
Discount Drug Mart’s loyalty program and that she had previously purchased goods
for her or her family’s use from Discount Drug Mart. However, there is no evidence
in the record that Anderson ever purchased any products from Discount Drug Mart
that were part of Discount Drug Mart’s multiple-unit pricing promotions, that she
(or anyone else) was falsely led to believe, based on Discount Drug Mart’s multiple-
unit pricing promotions, that customers needed to purchase the specific multiple of
units identified in the promotion in order to receive the discounted sales price or
that she (or anyone else) was “duped” into purchasing multiple units of any product
that was part of a multiple-unit pricing promotion, believing that it was the only way
to receive the discounted sales price for such product.
On September 6, 2019, both parties filed motions for summary
judgment. In its motion for summary judgment, Discount Drug Mart asserted that
it was entitled to judgment as a matter of law on Anderson’s complaint because: (1)
there was no evidence from which a reasonable jury could find that Discount Drug
Mart’s multiple-unit pricing promotions were untruthful or would mislead a
reasonable consumer; (2) Ohio law did not require Discount Drug Mart to
specifically state in its multiple-unit pricing promotions that consumers would
receive the discounted price if they purchased fewer quantities than the specific
multiple of units identified in the promotion; (3) Anderson’s claims ignored the
“plain language and meaning” of Ohio Adm.Code 109:4-3-02 and (4) the Cuyahoga
County Court of Common Pleas had recently granted summary judgment in favor of
the defendant in a case involving claims, Grgat v. Giant Eagle, Inc., Cuyahoga C.P.
CV-18-892339, which was later appealed to this court. In support of its motion for
summary judgment, Discount Drug Mart submitted copies of: (1) its answers to
Anderson’s request for admissions, (2) excerpts from the deposition of David
Bergman, Discount Drug Mart’s Civ.R. 30(B)(5) designee and (3) the complaint and
the trial court’s decision in Grgat v. Giant Eagle, Inc., Cuyahoga C.P. CV-18-
892339.1
In her motion for summary judgment, Anderson argued that it was
undisputed that (1) Discount Drug Mart represented to consumers in its weekly
circulars and on TPR tags that they would derive a “specific price advantage” if they
purchased the specific multiple of units advertised in its multiple-unit pricing
promotions; (2) consumers, in fact, derived no “specific price advantage” by
purchasing the specific multiple of units advertised because they would receive the
same proportionate discount regardless of the number of units purchased during
the promotion period and (3) Discount Drug Mart failed to inform consumers that
they did not have to buy the multiple specified in its multiple-unit pricing
promotions in order to receive the proportionate price advantage advertised. Based
on these undisputed facts, Anderson argued that Discount Drug Mart’s multiple-
1 Discount Drug Mart also submitted an affidavit from Bergman in support of its
motion for summary judgment. The trial court later granted Anderson’s motion to strike
the affidavit. Discount Drug Mart has not challenged that ruling. Accordingly, we do not
consider that affidavit in our de novo review here.
unit pricing promotions were deceptive “as a matter of law” under R.C.
1345.02(B)(8), that Discount Drug Mart had, therefore, violated R.C. 1345.02(A)
and that Anderson was entitled to declaratory and injunctive relief under R.C.
1345.09(D) and an award of her attorney fees under R.C. 1345.09(F)(2).
In support of her motion for summary judgment, Anderson
submitted copies of: (1) excerpts from Bergman’s deposition, (2) excerpts from
Discount Drug Mart’s weekly advertising circulars and (3) her Civ.R. 30(B)(5)
deposition notice to Discount Drug Mart.
On October 17, 2019, the trial court granted Discount Drug Mart’s
motion to stay the case, pending the outcome of this court’s decision in Grgat v.
Giant Eagle, Inc. On November 7, 2019, after this court issued its decision in Grgat
v. Giant Eagle, Inc., 2019-Ohio-4582, 135 N.E.3d 846 (8th Dist.), Discount Drug
Mart filed a motion to lift the stay and a notice of “supplemental binding authority,”
arguing that “the outcome of the appeal in the Grgat matter is binding legal
precedent that dictates a similar outcome in the present matter.” Anderson agreed
that the stay should be lifted but argued that because “[t]he evidence adduced in this
case differs from that which was adduced in Grgat, and the summary judgment
motions filed in Grgat differ from the one filed by [Discount Drug Mart] here,”
Grgat did not control the result in this case.
The trial court lifted the stay and, on November 21, 2019, issued
journal entries granting Discount Drug Mart’s motion for summary judgment and
denying Anderson’s motion for summary judgment, without an opinion. Anderson
appealed.
This court, sua sponte, dismissed the appeal for lack of a final,
appealable order, noting that the complaint was filed “as a declaratory judgment
pursuant to R.C. 1345.09(D)” and that “[a] trial court does not fulfill its function in
a declaratory judgment action when it fails to construe the documents at issue and
further fails to declare the rights and duties of the parties by simply granting
summary judgment on behalf of a party.”
On June 16, 2020, Anderson filed a motion with the trial court
requesting that it state the basis for its decision on the parties’ summary judgment
motions and declare the parties’ rights. The trial court granted the motion. On
July 7, 2020, the trial court issued a journal entry in which it stated that “[b]ased
upon the evidence presented, the Court does not find that Discount Drug Mart’s
multiple-unit pricing promotions violate R.C. 1345.02(B)(8).” The trial court
explained:
The Ohio Consumer Sales Practices Act defines unfair or
deceptive consumer sales practices as those that mislead consumers
about the nature of the product they are receiving. * * * In order to be
“deceptive” under the OCSPA, the act or practice in question must be
both false and material to the consumer transaction. * * * A matter that
is merely incidental to the choices a consumer must make when
deciding to engage in the transaction is not deceptive within the
meaning of the OCSPA. * * *
Plaintiff does not dispute that the discount is available to a consumer
who buys more or less than the stated units. By displaying a price as
“10 for $10” or “2 for $5,” Discount Drug Mart does not misrepresent
the sale price as displayed because it charges the proportionate sale
price at checkout. It is undisputed that the consumer receives the
multiple unit discount on any amount of units purchased with no
minimum or maximum purchase required. Plaintiff fails to satisfy the
element of falsity to prove that Discount Drug Mart’s multiple-unit
pricing as displayed on the shelf tags adjacent to the promotional
product is deceptive under the [OCSPA]. * * *
As there is no minimum or maximum amount required to be
purchased to receive the advertised promotional price, there is no
requirement that Discount Drug Mart do more.
* * * In construing the evidence most strongly in plaintiff[’]s favor, the
Court finds that reasonable minds can come to but one conclusion that
[p]laintiff has failed to establish that the challenged price promotions
violate the [OCSPA].
Once again, Anderson appealed, raising the following two
assignments of error for review:
Assignment of Error No. 1:
The trial court erred by granting Defendant-Appellee Discount Drug
Mart, Inc.’s summary judgment motion.
Assignment of Error No. 2:
The trial court erred by denying Plaintiff-Appellant Hollee J.
Anderson’s summary judgment motion.
Law and Analysis
Standard of Review
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). We accord no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is
appropriate.
Under Civ.R. 56, summary judgment is appropriate when no genuine
issue exists as to any material fact and, viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is
adverse to the nonmoving party, entitling the moving party to judgment as a matter
of law.
On a motion for summary judgment, the moving party carries an
initial burden of identifying specific facts in the record that demonstrate his or her
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary
judgment is not appropriate; if the moving party meets this burden, the nonmoving
party must then point to evidence of specific facts in the record demonstrating the
existence of a genuine issue of material fact for trial. Id. at 293. If the nonmoving
party fails to meet this burden, summary judgment is appropriate. Id.
Deceptive Act or Practices under the CSPA
The CSPA prohibits suppliers from committing unfair, deceptive or
unconscionable acts or practices in connection with consumer transactions. R.C.
1345.02 and 1345.03. R.C. 1345.02(A) states:
No supplier shall commit an unfair or deceptive act or practice in
connection with a consumer transaction. Such an unfair or deceptive
act or practice by a supplier violates this section whether it occurs
before, during, or after the transaction.
“Any consumer may seek a declaratory judgment, an injunction, or other
appropriate relief against an act or practice that violates this chapter.” R.C.
1345.09(D).
A “supplier” is “a seller, lessor, assignor, franchisor, or other person
engaged in the business of effecting or soliciting consumer transactions, whether or
not the person deals directly with the consumer.” R.C. 1345.01(C). A “consumer” is
“a person who engages in a consumer transaction with a supplier.” R.C. 1345.01(D).
A “consumer transaction” is “a sale, lease, assignment, award by chance, or other
transfer of an item of goods, a service, a franchise, or an intangible, to an individual
for purposes that are primarily personal, family, or household, or solicitation to
supply any of these things.” R.C. 1345.01(A).
The parties do not dispute that Discount Drug Mart is a “supplier,”
that Anderson is a “consumer” or that the representations at issue were made “in
connection with a consumer transaction” within the meaning of R.C. 1345.01(A),
(C), (D) and 1345.02(A).
“In general, the CSPA defines ‘unfair or deceptive consumer sales
practices’ as those that mislead consumers about the nature of the product they are
receiving.” Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834
N.E.2d 791, ¶ 24. Whether a supplier’s act or omission violates the CSPA “depends
on how a reasonable consumer would view it.” Grgat, 2019-Ohio-4582, 135 N.E.3d
846, at ¶ 18. “[A] deceptive act ‘has the likelihood of inducing a state of mind in the
consumer that is not in accord with the facts.’” Chesnut v. Progressive Cas. Ins. Co.,
166 Ohio App.3d 299, 2006-Ohio-2080, 850 N.E.2d 751, ¶ 23 (8th Dist.), quoting
McCullough v. Spitzer Motor Ctr., Inc., 8th Dist. Cuyahoga No. 64465, 1994 Ohio
App. LEXIS 262, 23 (Jan. 27, 1994); see also Barlow v. Gap, Inc., 8th Dist. Cuyahoga
No. 109101, 2020-Ohio-4382, ¶ 23-24.
For conduct to be “deceptive” under the CSPA, it “must be both
false and material to the consumer transaction.” Grgat at ¶ 15-16; see also Barlow
at ¶ 25-26. As this court explained in Grgat:
Although R.C. 1345.02 does not use the word “falsity” or “false,” each
and every deceptive practice listed in the R.C. 1345.02 describes a
misrepresentation of the truth, i.e., a falsity. * * * [F]alsity is the
essence of deception. * * *
Grgat at ¶ 15. Likewise, with respect to materiality,
[a]lthough R.C. 1345.02 does not explicitly state that
misrepresentations must be material to the transaction, it is well
established that a deceptive act or practice under the CSPA is one that
“‘has the tendency or capacity to mislead consumers concerning a fact
or circumstance material to a decision to purchase the product or
service offered for sale.’” (Emphasis added.) Richards v. Beechmont
Volvo, 127 Ohio App.3d 188, 711 N.E.2d 1088 (1st Dist.1998), quoting
Cranford v. Joseph Airport Toyota, Inc., 2d Dist. Montgomery No.
15408, 1996 Ohio App. LEXIS 2252 (May 17, 1996). See also Davis v.
Byers Volvo, 4th Dist. Pike No. 11CA817, 2012-Ohio-882, ¶ 29. * * *
“In order to be deceptive, and therefore actionable, a [supplier’s] act
must not only be at variance with the truth but must also concern a
matter that is or is likely to be material to a consumer’s decision to
purchase the product or service involved. A matter that is merely
incidental to the choices a consumer must make when deciding to
engage in the transaction is, therefore, not ‘deceptive’ within the
meaning of the [the CSPA] * * *.”
Davis at ¶ 29, quoting Cranford. Therefore, * * * in order to be
“deceptive” under the CSPA, the act or practice in question must be
both false and material to the consumer transaction.
Grgat at ¶ 16.
R.C. 1345.02(B) sets forth a nonexhaustive list of representations by
a supplier that constitute deceptive acts or practices. R.C. 1345.02(B)(8) states that
a supplier engages in a deceptive act or practice if it “represent[s]” “[t]hat a specific
price advantage exists, if it does not.” See also Grgat at ¶ 19; Martin v. Lamrite
West, Inc., 8th Dist. Cuyahoga No. 102251, 2015-Ohio-3585, ¶ 3 (“R.C.
1345.02(B)(8) makes it a deceptive act in a consumer transaction for a supplier to
represent ‘that a specific price advantage exists, if it does not.’”). In addition, R.C.
1345.05(B)(2) authorizes the Ohio attorney general to “[a]dopt, amend, and repeal
substantive rules defining with reasonable specificity acts or practices that violate
[R.C.] 1345.02.” Ohio Adm.Code 109:4-3-02, adopted pursuant to that authority,
states, in relevant part:
(A)(1) It is a deceptive act or practice in connection with a consumer
transaction for a supplier, in the sale or offering for sale of goods or
services, to make any offer in written or printed advertising or
promotional literature without stating clearly and conspicuously in
close proximity to the words stating the offer any material exclusions,
reservations, limitations, modifications, or conditions. Disclosure shall
be easily legible to anyone reading the advertising or promotional
literature and shall be sufficiently specific so as to leave no reasonable
probability, that the terms of the offer might be misunderstood.
(2) The following are examples of the types of material exclusions,
reservations, limitations, modifications, or conditions of offers which
must be clearly stated:
***
(g) If there is a minimum amount (or maximum amount) that must be
purchased for the advertised price to apply, that fact must be stated.
Whether a particular act or practice is deceptive is ordinarily an issue
of fact; however, “when the evidence plainly reveals that a reasonable jury could not
find that the act or practice misled a reasonable consumer, * * * whether a defendant
engaged in a deceptive act or practice may be determined as a matter of law.” Davis,
2012-Ohio-882, at ¶ 27.
As detailed above, the material facts in this case are undisputed.
Discount Drug Mart regularly uses multiple-unit pricing promotions when
advertising its sales to consumers. Although Discount Drug Mart’s advertisements
and TPR tags state the promotion price and savings in terms of multiple units, the
consumer receives the same pro-rata discount on items purchased during the
promotion period regardless of the quantity purchased; i.e., there is no minimum
number of units a customer must purchase in order to receive the pro-rata
discounted sales price. In other words, if a customer purchases one unit during the
promotion period, the customer would pay the same discounted price per unit as the
customer would pay if he or she were to purchase the multiple of units specified in
the advertisement (or any other quantity of the advertised product) during the
promotion period. The advertisement and TPR tags do not, however, specifically
state that the same discounted price per unit applies regardless of the quantity of
units purchased.
Anderson contends that “[b]y telling consumers that they would
qualify for the discount by buying a specific multiple number of product units, but
withholding [from] them that they would also qualify for the same discount by
buying from [Discount Drug Mart] even a single unit of the promoted product,
[Discount Drug Mart] seeks to mislead consumers that they need to buy more than
is necessary to qualify for the discount.” She maintains that such conduct is
“deceptive as a matter of law” under R.C. 1345.02(B)(8), fails to comply with Ohio
Adm.Code 109:4-3-02(A)(2)(g) and violates R.C. 1345.02(A).
This court rejected similar claims in Grgat, 2019-Ohio-4582, 135
N.E.3d 846. In that case, this court affirmed the trial court’s granting of summary
judgment in favor of the defendant, Giant Eagle, Inc. (“Giant Eagle”), and against
the plaintiff where the plaintiff claimed that Giant Eagle’s “multi-unit pricing
promotions” were deceptive under R.C. 1345.02(B)(8). In Grgat, the plaintiff filed
a complaint for declaratory and injunctive relief, alleging that Giant Eagle had
violated R.C. 1345.02(A) by using shelf price tags that promoted a discounted price
for a specific number of units of a particular product without specifying that the
price of a single can was also discounted. Id. at ¶ 3. Giant Eagle’s multi-unit pricing
promotions were also advertised on signs within the store and in Giant Eagle’s
weekly circular, which was mailed to customers. Id. at ¶ 4.
As one example of Giant Eagle’s multi-unit pricing promotions, the
plaintiff pointed to a promotion Giant Eagle ran in December 2017 on a brand of
pizza sauce. The regular price of the product was $1.69 per can. During the sale,
Giant Eagle used a shelf tag to indicate that customers who used their Giant Eagle
loyalty card could buy tens cans of the sauce for $10 during the promotion period,
resulting in a savings of $6.90. Id. at ¶ 5. Customers were not, however, required
to purchase ten cans of the pizza sauce “in order to derive the same price advantage.”
If a customer purchased one can of the sauce, using his or her loyalty card during
the promotion period, that single can would cost $1.00. The pro-rata sales price of
a single can was not, however, listed on the shelf tag. Id. at ¶ 6. In other words,
Giant Eagle did not expressly inform customers that they were not required to buy
the specific multiple of products identified in its promotion in order to receive the
price advantage described on the shelf tag. Id.
The parties filed cross-motions for summary judgment. Id. at ¶ 7.
The trial court granted Giant Eagle’s motion for summary judgment and denied the
plaintiff’s motion, concluding that the plaintiff had failed to prove that Giant Eagle’s
multi-unit pricing promotions were deceptive under the CSPA. Id. at ¶ 8. The
plaintiff appealed to this court. Id. at ¶ 9.
On appeal, the plaintiff argued that Giant Eagle’s multi-unit pricing
promotions were “deceptive per se” and that he was not require to prove that they
were false or material to the transaction because R.C. 1345.02 is a strict liability
statute. Id. at ¶ 11. This court disagreed.
This court held that “R.C. 1345.02(B)(8) is not a strict liability statute”
and found that the plaintiff had presented no evidence that any of Giant Eagle’s
multi-unit pricing promotions represented that a specific price advantage existed
when it did not. Id. at ¶ 18-19. The court further found that there was “nothing
deceptive or inaccurate about [the] representations” made in Giant Eagle’s multi-
unit pricing promotions and rejected the plaintiff’s claim that the shelf tags were
deceptive “because they did not communicate the fact that customers could
purchase less than the total number of items advertised and still receive the sale
price per individual unit.” Id. at ¶ 19-21. The court explained:
[T]he fact that Giant Eagle did not advertise the pro-rata price
per can is not, by itself, deceptive. There is no evidence that the shelf
tags, signs, or circulars stated that customers had to buy the total
amount of items advertised in the promotion in order to get the
promotional price, when such was not the case. And there is no
evidence that the shelf tags, signs, or circulars advertised a specific
price advantage on, for example, the purchase of ten cans of pizza sauce
for $10.00 and then charged unsuspecting consumers the nonsale price
on lesser quantities.
The undisputed evidence shows that when a customer buys
lesser quantities of a product subject to a multi-unit pricing promotion,
the customer is explicitly informed in writing of the unit price of a “10
for 10” type of promotion on the computer screen facing the customer
when the product is scanned at the checkout before the customer pays
for the item. * * * The same per-unit, pro-rata cost of a particular sale
item is also set out in writing in the customer’s receipt. Furthermore,
* * * if a customer must buy the total amount of product listed in a
multi-unit pricing promotion in order to get the sale price, the per-unit
price for lesser quantities is expressly stated in the tag or sign. * * *
Therefore, [the plaintiff] has failed to produce any evidence that Giant
Eagle engaged in any deceptive acts or practices in violation of R.C.
1345.02(B)(8).
Id. at ¶ 22-23. The court also held that the trial court’s finding that Giant Eagle did
not violate R.C. 1345.02(B)(8) “comports with the specific language of Ohio
Adm.Code 109-4-3-02(A)(2)(g).” Id. at ¶ 28. A similar result is warranted in this
case.
Anderson argues that this case is distinguishable from Grgat because
unlike in Grgat, she presented “abundant evidence * * * demonstrating that
[Discount Drug Mart] regularly represents to consumers that specific price
advantages exist when, in fact, they do not.” She contends that Bergman’s testimony
establishes that Discount Drug Mart’s multiple-unit pricing promotions have “‘the
likelihood of inducing a state of mind in the consumer that is not in accord with the
facts,’” quoting Grgat at ¶ 18, because its advertisements and TPR tags “conceal[]
* * * the whole truth” from consumers, i.e., that “they need not buy the multiple
number of product units specified in the ads in order to reap the benefit of the price
promotion.” We disagree. Anderson’s attempts to distinguish Grgat are unavailing.
In support of her claims, Anderson points to evidence of several
weekly advertising circulars in which Discount Drug Mart advertised multiple-unit
pricing promotions on various products, including Discount Drug Mart’s weekly
circular for the period November 14, 2018 through November 20, 2018, which
included the multiple-unit pricing promotion — “10 for $10” and “Save 9.90 on 10”
— on 12-ounce bags PicSweet Simple Harvest frozen vegetables discussed above.
That same weekly circular also included a multiple-unit pricing promotion on six-
ounce boxes of Stove Top stuffing. The promotion stated that consumers could
purchase “4 for $5” and save “4.16 on 4.”2 Bergman testified that, with respect to
2 In addition to Discount Drug Mart’s weekly circular for the promotion period
November 14, 2018 through November 20, 2018, in her summary judgment filings,
Anderson also presented evidence of Discount Drug Mart’s weekly circular for the
promotion period November 21, 2018 through November 27, 2018, which included a
multiple-unit pricing promotion for Close-Up toothpaste (“5 for $5,” “Save 4.95 on 5”),
Discount Drug Mart’s weekly circular for the promotion period December 5, 2018 through
December 11, 2018, which included a multiple-unit pricing promotion for Mama Lucia
meatballs (“2 for $2,” “save 5.98 on 2”), Discount Drug Mart’s weekly circular for the
these promotions (and every other multiple-unit pricing promotion identified by
Anderson), customers did not need to purchase the specific multiple of units
identified in the promotion in order to receive the discounted sales price. Customers
could purchase fewer (or more) units than the specific multiple advertised and still
receive the pro-rata discounted price per unit.
Despite Anderson’s assertions to the contrary, Bergman’s testimony
does not establish that Discount Drug Mart’s multiple-unit pricing promotions are
deceptive under R.C. 1345.02(B)(8) or that Discount Drug Mart otherwise violated
R.C. 1345.02(A). An act or practice is not deceptive under R.C. 1345.08(B)(2) unless
the supplier represents to consumers “that a specific price advantage exists, if it does
not.” Anderson presented no evidence that any of Discount Drug Mart’s multiple-
unit pricing promotions represented that a specific price advantage existed when it
did not and presented no evidence from which a reasonable jury could otherwise
find that Discount Drug Mart’s representations in its multiple-unit pricing
promotions were false, material and would mislead a reasonable consumer.
Here, as in Grgat, there is nothing deceptive, untrue or inaccurate
about any of Discount Drug Mart’s representations in the multiple-unit pricing
promotion period December 26, 2018 through January 1, 2019, which included a
multiple-unit pricing promotion for Charmin toilet paper (“2 for $12,” “Save 5.18 on 2”),
and Discount Drug Mart’s weekly circular for the promotion period April 10, 2019
through April 16, 2019, which included multiple-unit pricing promotions for Duck Brand
invisible tape (“2 for $3,” “Save 90¢ on 2”), Wonka SweeTarts (“2 for $4,” “Save 1.58 on
2”), Easter Tootsie Roll candies (“2 for $4,” “Save 95¢ on 2”), Brach’s Jelly Bird Eggs (“2
for $2,” “Save 1.00 on 2”), Purex liquid laundry detergent (“2 for $4,” “Save 3.96 on 2”)
and Purex scent booster crystals (“2 for $5,” “Save 2.98 on 2”).
promotions at issue. There is no dispute that Discount Drug Mart’s representations
in its multiple-unit pricing promotions accurately reflected the total price a
customer would pay and the total savings a customer would realize if he or she
purchased the specific multiple of products identified in the promotion.
The fact that Discount Drug Mart did not advertise the pro-rata
discounted sales price per unit and did not otherwise specifically indicate, in its
advertisements or TPR tags, that customers could purchase fewer units than the
multiple of units advertised and still receive the pro-rata discounted sales price per
unit is not, in and of itself, deceptive. See Grgat, 2019-Ohio-4582, 135 N.E.3d 846,
at ¶ 22. There is no evidence that Discount Drug Mart’s advertisements or TPR tags
stated that customers needed to buy the specific multiple of units advertised in the
promotion in order to get the promotion price, when such was not the case. There
is no evidence that Discount Drug Mart promoted a specific price advantage on a
certain multiple of items and then charged consumers the nonsale price (or a price
other than the pro-rata discounted sales price) on lesser quantities of the advertised
item.
Anderson also contends that this case is distinguishable from Grgat
because, in this case, “[t]he undisputed evidence * * * indicates that [Discount Drug
Mart’s] multiple unit pricing promotions do not comport with the specific language
of Ohio Adm.Code 109:4-3-02(A)(2)(g).” She claims that Bergman’s testimony
demonstrates (1) Discount Drug Mart’s advertisements “run afoul of those
requirements,” (2) that there is, in fact, a minimum number of units consumers
must purchase from Discount Drug Mart during its multiple-unit pricing
promotions in order for its advertised prices to apply — i.e., one unit — and (3)
Discount Drug Mart violated Ohio Adm.Code 109:4-3-02(A)(2)(g) and engaged in
deceptive conduct under R.C. 1345.02(B)(8) and 1345.02(A) by failing to disclose
this information in its advertisements. In support of her claims, Anderson points to
the following testimony by Bergman:
Q. Now, with all these multiple unit pricing promotions, you
indicated before that a customer could obtain the same price advantage
just from buying a single unit of promoted product rather than buying
the multiple number of the promoted product, right? * * * Is that
correct?
A. Yeah.
***
Q. So what is the minimum number of product units a consumer
would need to buy to actually obtain the benefit of that price
promotion?
A. One.
Anderson’s argument is meritless. Simply because a consumer must
actually purchase the advertised product during the promotion period in order to
obtain the advertised sales price does not mean that “there is a minimum amount
(or maximum amount) that must be purchased for the advertised price to apply”
within the meaning of Ohio Adm.Code 109:4-3-02(A)(2)(g). Here, the record is
clear that customers would be charged the same pro-rata discounted price per unit
during the promotion period regardless of the number of units a customer
purchased, i.e., that there was no minimum or maximum quantity a customer had
to purchase, for the pro-rata advertised price to apply. Accordingly, Discount Drug
Mart’s failure to state in its advertisements or TPR tags that a consumer must
purchase at least one unit of the advertised product for the pro-rata advertised price
to apply does not violate Ohio Adm.Code 109:4-3-02(A)(2)(g) and does not
constitute a deceptive act or practice under Ohio Adm.Code 109:4-3-02(A)(1) or
R.C. 1345.02(A). There is no evidence that Discount Drug Mart failed to make any
required disclosures under Ohio Adm.Code 109:4-3-02(A)(2)(g).
Construing the evidence in the light most favorable to Anderson, we
find that there are no genuine issues of material fact and that, based on the
undisputed facts, Discount Drug Mart is entitled to judgment as a matter law. The
trial court, therefore, properly granted Discount Drug Mart’s motion for summary
judgment and denied Anderson’s motion for summary judgment. Anderson’s
assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee shall recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION ATTACHED
SEAN C. GALLAGHER, P.J., CONCURRING:
Although I empathize with the apparent confusion created by the
promotional practice to the ordinary consumer, it does not rise to the level of a legal
violation; thus, I fully concur.
Keywords:
Civ.R. 56(C); declaratory and injunctive relief; deceptive act or practice; R.C.
1345.02(A); multiple-unit pricing promotions; R.C. 1345.02(B)(8); specific price
advantage; Ohio Adm.Code 109:4-3-02(A)(1); Ohio Adm.Code 109:4-3-
02(A)(2)(g).
Trial court did not err in granting defendant retailer’s motion for summary
judgment and denying plaintiff consumer’s motion for summary judgment on
complaint seeking declaratory and injunctive relief for alleged deceptive acts or
practices under R.C. 1345.02(A). There was nothing deceptive, untrue or inaccurate
in defendant’s multiple-unit pricing promotions. Plaintiff did not show that
defendant’s multiple-unit pricing promotions represented that a specific price
advantage existed when it did not under R.C. 1345.02(B)(8) and presented no
evidence from which a reasonable jury could otherwise find that defendant’s
representations were false, material and would mislead a reasonable consumer.
Defendant’s failure to state in its advertisements that a consumer must purchase at
least one unit of the advertised product for the pro-rata advertised sales price to
apply did not violate Ohio Adm.Code 109:4-3-02(A)(2)(g) and did not constitute a
deceptive act or practice under Ohio Adm.Code 109:4-3-02(A)(1) or R.C.
1345.02(A).