Disparate impact isn't "unfair" for consumer protection purposes, court indicates

Schulte v. Conopco, Inc., No. 20-2696 (8^h Cir. May 18, 2021)

This would make a great student note topic: Is disparate impact “unfair” under state consumer protection laws? The court here implicitly says no, without ever confronting the question directly. Seems wrong to me.

Schulte sued numerous companies for violating the Missouri Merchandising Practices Act (MMPA) through their marketing of men’s and women’s antiperspirants—the men’s is cheaper. The court of appeals affirmed the dismissal of the complaint.

The MMPA bans “the act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.”

A Missouri regulation interprets “unfair practice” as any practice that either “[o]ffends any public policy as it has been established by the Constitution, statutes or common law of this state, or by the Federal Trade Commission, or its interpretive decisions” or “[i]s unethical, oppressive or unscrupulous.”

But, the court reasoned, “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.” In order to prevail, she’d have to plausibly allege that the only difference between the products is the gender of the purchaser,” but targeted marketing was not the same thing as “enforced point-of-sale pricing by gender.” (By that logic, advertising only to hire men would not be a problem if they’d hire women who showed up regardless.)

Because men and women can purchase any of the products, they both have equal opportunity to buy. “Ironically, her claim assumes all men and all women must purchase products marketed to their gender.” She’s free to purchase the men’s products if all she cares about is price. “Her choice not to illustrates a difference in demand based on product preferences, not the purchaser’s gender.” She doesn’t want the men’s products “because she does not want to ‘smell like a man.’ She just does not want to pay extra for her preference.” But “preference-based pricing is not necessarily an unfair practice."