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Can I take an item from a grocery store without paying for it if it’s clearly marked “free”? For example, skim milk is often labeled “fat free milk.” Since “fat-free” (as in “has no fat”) is a compound modifier, it should be hyphenated. Without the hyphen, they’re saying the milk is free. Is bad grammar a valid legal defense? —Asking for a Friend
Proponents of the Oxford comma—the one that sometimes appears before the “and” in a sequence of three or more items—like to cite a probably apocryphal book dedication to prove their point: “To my parents, Ayn Rand and God.”
I mention this not just because the type of person who would dedicate their book to Ayn Rand and God—in that order—is also exactly the type of person who would try to get free milk over a hyphen (although they are). It’s also to show how even grammatically murky phrases usually aren’t that hard to parse in context: Any reasonable person knows the Ayn Rand guy isn’t saying God is his dad. They also know that milk cartons don’t contain cheat codes for free stuff that only insufferable grammarians can decipher.
This “reasonable person” construct provides the legal basis for evaluating product labels and advertisements. It’s specifically designed to prevent the kind of disingenuous high jinks you’re proposing, Asking. (Wait till your “friend” finds out about free range chickens!)
Even when a company’s ad or label contains full-on mistakes (the law calls these, delightfully, “scrivener’s errors”) that unambiguously change the terms of the deal—“$2 per lb.” instead of “$2 per ea.,” say, or “$10.00” rather than “$1000”—reasonable people understand (or should) that no one sells new iPhones for $10, and courts usually let them off the hook.
But not always! In 2014, Red Bull settled a false-advertising class action over its slogan. “It gives you wings” is, indeed, a factually untrue statement. Still, were reasonable people really expecting to fly? Well, not quite—plaintiffs argued that while the slogan shouldn’t be taken literally, it did imply performance-enhancing effects the company couldn’t document.
Still, for the most part, advertisers get a pass. This means courts are unlikely to sympathize with your claim that they shouldn’t call it “WHOLE MILK” when it’s in a half-gallon container, or that your “EXTRA PULP” orange juice should have come with a life-size poster of Jarvis Cocker, or that the car wash that loudly bills itself as “FULL SERVICE” barely even gave you a handjob. Seems unfair, but what are you gonna do? Truth in advertising has its limits.
Questions? Send them to dr.know@wweek.com.
