What Happened When One NYC Pharmacy Charged Men More

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image credit: breibart.com

Thompson Chemists in the Soho neighborhood of New York City got some attention this week when it posted signs saying “All female customers shop tax free” and “All male customers subject to a 7% man tax.” Here’s some press coverage of the event from Gothamist:

Jolie Alony, who has owned the pharmacy for 22 years and lives in SoHo, said she wants men who shop at her store to understand the extra costs that women bear when they shop.

“We want to bring awareness on how it feels to be a woman, so the men actually get to feel it,” she said. * * * Despite what her signs say, Alony explained, men aren’t actually coughing up more than they normally would at the register; rather, she’s offering a 7 percent discount for women—effectively cutting out sales tax. She’s still required to report all sales and pay out the sales tax in full, so, she said, she’s just making up the difference herself.

The policy is being run as a promotion—Alony said she’ll see how the day goes and decide if she wants to keep it in place.

Thompson Chemists later posted this note on its Facebook page (see more press coverage here):

Calm down SoHo friends!

As stated in the article: “men aren’t actually coughing up more than they normally would at the register; rather, she’s offering a 7 percent discount for women—“
this makes up for how women are often overcharged for over-the-counter and beauty products (on average 7% according to the NYC Department of Consumer Affairs).

This is a friendly reminder to treat your friends and neighbors as equals and to read articles in their entirety before passing judgment.

With love from your neighborhood pharmacy,
Thompson Chemists

The Gothamist article says that the New York City Department of Consumer Affairs “wrote back to Gothamist to explain that there’s no legal issue with the Thompson Chemist promotion, as there isn’t a prohibition on price discrimination for goods. It is illegal, however, to discriminate in the pricing of services.”  I would be surprised if it is correct that vendors can legally discriminate in price, based on the sex of the customer.  The finer point is that Thompson Chemists is essentially giving a discount to women and not men by paying the women’s sales tax themselves.  In other words, Thompson Chemists is still on the hook for paying to New York State the sales tax on all of the (taxable) property it sells; the store is simply choosing to cover some of the tax itself.

I love the awareness that Thompon Chemists is raising, but I do wonder if it is legal to offer discounts to one group and not the other, on the basis of sex.  Or, are discounts so inherently discretionary that the law defers to the judgment of the store offering the discount?  Con Law experts, please chime in.

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