Shook Prevails in “Pink Tax” Litigation

The Eighth Circuit affirmed a Shook victory in an antiperspirant pricing class action brought under the Missouri Merchandising Practice Act (MMPA). Shook represented Unilever, which manufactured the product, along with multiple retailers, including CVS, Schnucks Markets and Dierbergs Markets. Plaintiff Karen Schulte bought six different Dove “Advanced Care” antiperspirant products from six retailers in June 2019. She then sued, arguing that these products (which are marketed towards women) were priced in a manner that constituted an “unfair practice.” She did not claim that the antiperspirant was in any way defective, that she was deceived by the labeling, or that she received anything other than what she was promised. Instead, she complained that the price was in each case higher than the price of a different product, the Dove “Men + Care” stick antiperspirant, which she believed used the same active ingredient. Schulte labeled this practice as a “pink tax.” But the ingredients, scents, labels and even size were not the same between the products, so in 2020, the U.S. District Court for the Eastern District of Missouri granted the defendants’ motion to dismiss.

The court noted that Schulte’s claims of a “pink tax” were “not amenable to judicial resolution” and said any “remedy lies with legislation not litigation.” The Eighth Circuit affirmed. The three-judge panel held that “Schulte mistakes gender-based marketing for gender discrimination. She ignores that the different scents, packaging, and labels make the products potentially attractive to different customers with different preferences.” The court added that even if the “MMPA bans gender discrimination in pricing, [Schulte] cannot plausibly allege it using only retail-price differences without plausibly alleging that the only difference between the products is the gender of the purchaser.” In other words, the Eighth Circuit said there is no legal problem with pricing different products differently.

Schulte v. Conopco, Inc., 997 F.3d 823 (8th Cir. 2021).