Cigarillo maker accused of selling equivalent loose product for more than packaged special offer

Legendary

In a previous issue we discussed a lawsuit involving John Deere, a brand that has become a cultural icon. This week we address a similarly iconic product – albeit from a very different culture: Swisher Sweets.

If you’ve ever spent time in a convenience store, you’ve seen Swisher Sweets or a brand like it: small cigars that can be purchased individually in plastic wrapping or several at a time in a box. This type of small cigar – sometimes called a cigarillo – has become a staple of hip-hop culture; when stuffed with marijuana (by the consumer, of course), the cigarillos become the blunts of rap lore. A recent internet search uncovered several hundred songs that call out the Swisher Sweets brand by name.

Rolled?

Swisher International Inc., which sells its cigarillos for profit in Oregon retail stores, became the subject of a class action suit filed by plaintiff J. Podawiltz in the Circuit Court of Oregon for Multnomah County on behalf of himself and other similarly situated Oregon consumers. The accusation? The plaintiff claimed that Swisher violated Oregon’s Unlawful Trade Practices Act, causing the plaintiff and many other Oregon consumers to suffer ascertainable economic losses as a result of its false and misleading promotion. In particular, the complaint alleged that the defendant advertised a five-cigarillo box of sweets as “5 for the price of 3” and the plaintiff purchased a five-box for $4.79, when single Swishers were available for only 99 cents at Plaid Pantry, the store in which the plaintiff purchased the defendant’s cigarillos.

The parties settled in March, with the defendant forking over $2.5 million in vouchers for its product to class members, those who purchased Swisher cigar products between Aug. 25, 2015, and Feb. 7, 2019. Class members who bought the Swishers under the five-for-the-price-of-three arrangement, as well as a number of variants on the “X for the price of X” formula, can claim up to five $1 vouchers.

Let’s hope they use the five dollars to buy five loose swishers instead of five in a box.

The Takeaway

Companies should be mindful of not making representations to consumers about the alleged existence of price reduction in hopes of increasing sales when consumers would be better off buying the product in smaller quantities. Making false representations of fact to consumers could make a company the target of a class action lawsuit for unlawful trade practices.