Timber! Court Tosses False Ad Suit Challenging Lumber Sizing

Advertising Law

An Illinois federal court chopped down the plaintiff's putative class action over the size of The Home Depot's lumber, granting the defendant's motion to dismiss.

During a visit to the Palatine, IL, Home Depot store in December 2016, Mikhail Abramov saw a shelf tag advertising six-foot lengths of "4x4′" pressure-treated pine lumber for $7.17. Tags on the lumber also stated that it measured "4x4–6′." Abramov purchased a piece of the lumber, but when he got home, he realized that it actually measured 3.5 inches square.

He sued the national chain, alleging violations of the Illinois Consumer Fraud Act (ICFA), as well as a breach of express and implied warranties and unjust enrichment.

In its motion to dismiss the suit, Home Depot explained that the stated dimensions do not accurately represent the lumber's actual size because it must be "dressed." This process is intended to ensure that the faces of the lumber are square and that the board has consistent, uniform dimensions. When materials are removed in the process, the dressed board is smaller than a rough cut board.

The defendant informed the court that it advertised the pre-dressed lumber without noting the final size according to a long-standing advertising practice. In dismissing the suit without prejudice, U.S. District Court Judge Sharon Johnson Coleman concluded that:

"The truthfulness of the label in question … cannot be reasonably disputed," the court said. "Numbers are an abstract concept; they only gain physical meaning when they are paired with a corresponding unit of measurement describing what is being measured. The label in question here concerned a product described as '4x4–6′.' The only unit of measure in that label is the prime following the number six, which it is undisputed indicates that the product in question is six feet long. The notation '4x4,' by contrast, has no unit of measure and therefore cannot be read as describing a physical dimension."

Nor can that sole unit of measure be assumed to be related to the first "4x4" indication, because the prime is separated from "4x4" and the prime denotes only feet, so "no one would confuse a four-inch-square board with a four-foot-square board," the court said. "Because there is no corresponding unit of measure, it would be erroneous to interpret the label as providing any dimensions beyond the length of the board."

While representations that are literally true—as the court found Home Depot's label—can still be potentially misleading under ICFA, the plaintiff's allegations simply described a "potentially confusing" label. "Here, at most, Abramov has alleged that the product label in question is ambiguous and that it might confuse consumers as to a material fact," the court wrote. "This allegation is insufficient to establish that the label in this case, which is truthful, is nevertheless misleading and legally actionable under ICFA. This is especially so in this case because, here, Abramov had physical access to the board in question, and therefore had access to all of the information that he needed to determine its actual dimensions."

To read the memorandum opinion and order in Abramov v. The Home Depot, Inc., click here.

Why it matters: Not only did the Illinois federal court find that the defendant's labeling was literally true, it held that the defendant's representations were not misleading because the plaintiff had at most alleged that the label was potentially confusing to some consumers. Coupled with the fact the plaintiff had physical access to the product in question—and therefore had the ability to see and measure the disputed characteristics prior to purchase—the court found the labels were not misleading.