Four years ago, the New York City Department of Consumer Affairs revealed that Whole Foods stores had been ripping off customers by overcharging them for pre-packaged items. The investigation led to lawsuits alleging "deceptive practices, false advertising, unjust profits, breach of contract" with damages in the millions. Now, a U.S. District Court judge has sided with Whole Foods and tossed out the lawsuit. (It was originally thrown out in 2016, but then an appeals court vacated that ruling.)
The 2015 DCA investigation involved testing "packages of 80 different types of pre-packaged products and found all of the products had packages with mislabeled weights," according to the agency. For instance, eight packages of chicken tenders, which were supposed to be $9.99 per pound, were labeled with $4.13 overcharge to the customer per package. Further, most of the packages "tested did not meet the federal standard for the maximum amount that an individual package can deviate from the actual weight, which is set by the U.S. Department of Commerce," according to the DCA.
Plaintiff Sean John, who frequented the Whole Foods in Chelsea and the Lower East Side, accused the grocery chain, now owned by Amazon, of overcharging him and other customers, who "have no way of knowing that they were in fact being overcharged for pre-packed items," and saying the store made "regular misrepresentations regarding the weight of its pre-packaged foods are misleading and deceptive to consumers."
The Wall Street Journal reports, "In his ruling, U.S. District Judge Paul Engelmayer said Mr. John had based his claims entirely on the investigation."
"John did not claim ever to have weighed any cupcake or cheese that he had bought, to have direct evidence of any kind that any product he had bought had been short-weight, or even to have retained records of his purchases." ...
In his ruling, Judge Engelmayer discussed Mr. John’s purchases—vegan and chocolate cupcakes; cheddar, Parmesan, goat, mozzarella, brie, blue and truffle cheeses—and the Department of Consumer Affairs’s methodology. The judge wrote that the investigators didn’t find short-weighted chocolate cupcakes or cheeses at either the Bowery or Chelsea stores where Mr. John shopped.
The judge noted that six of seven cheeses found to be short-weighted at other stores, including Gouda Parrano and Swiss Raclette, weren’t on Mr. John’s shopping list.
“The salient point is this: The evidence from DCA falls far from supporting an inference that any of John’s purchases were short-weight and overpriced,” Judge Engelmayer wrote.
Whole Foods paid NYC $500,000 after the 2015 overcharging scandal, which is $1 million less than the DCA proposed. Whole Foods executives also apologized, saying, "Straight up, we made some mistakes" but claimed the overcharging happened infrequently.