Bill to end gender disparity in retail pricing is withdrawn after pushback from industry lobbyists

Consumers won’t be able to challenge the so-called “pink tax” in California — at least not this year.

On Tuesday, state Sen. Ben Hueso (D-San Diego) withdrew his bill banning businesses from charging customers different prices for similar goods on the basis of gender, allowing stores to continue to charge more for products marketed for women and girls. 

Hueso had said the legislation was meant to expand existing laws to protect vulnerable consumers. But the bill drew strong industry opposition from retailers and manufacturers who argued its conditions were ambiguous and would open the way to a wave of frivolous lawsuits.

Hueso pulled his bill out of the Assembly Judiciary Committee, which was expected to vote on the measure Tuesday after the Senate approved the legislation in May.

Richard Holober, executive director of the Consumer Federation of California, which sponsored the bill, said proposed amendments from opponents would have stripped the legislation of its penalties and mandated consumers to show conclusive proof of discrimination.

“It loaded the decks so that it was unenforceable,” said Richard Holober, executive director of the Consumer Federation of California. “We are very angry that what we find is another example where corporate interests dominate the majority.” 

California has long led the way in attempts to end so-called retail discrimination. Among the first state laws passed was the 1959 Unruh Civil Rights Act, which requires businesses to grant “full and equal accommodations” to everyone regardless of race, sex, religion or national origin. 

The state went further in 1995, when it became the first in the nation to prohibit businesses from pricing services based on gender through the Gender Tax Repeal Act, sponsored by then-state Sen. Jackie Speier (D-San Mateo).

Hueso said his bill would have updated that law to also include goods.

His bill included provisions to allow price differences based specifically on the labor, materials, taxes or other gender-neutral reasons. But it would have allowed customers to challenge prices on “substantially similar” products from the same brands that shared the same functional components and 90% of the same materials or ingredients. 

Before the Assembly Judiciary Committee last week, Hueso held up two razors from the same company — one blue, another pink. He said a 12-pack of the blue razors marketed for men cost $5 less than a 12-pack of those sold for women in the same store.

The issue of gendered pricing is one that has resonated nationwide, dovetailing with debate over the wage gap between men and women. Its impact has been particularly pronounced in toys, researchers said, with identical products such as scooters often priced differently based on color, label or placement in the store.

Hueso and supporters of his legislation also pointed to a 2015 study from the New York City Department of Consumer Affairs, which analyzed nearly 800 goods and found those intended for women cost more 42% of the time and that girls’ toys cost more 55% of the time.  

“Women are getting paid less and have to pay more for everyday goods,” said Sandra Williams with the California National Organization for Women. “That should not be tolerated.”

But the bill sparked debate among Assembly Judiciary Committee members who questioned whether the bill put too much of the onus on retailers. Assemblywoman Cristina Garcia (D-Bell Gardens), who authored a bill to repeal the sales tax on tampons and pads, said she was hesitant to pass legislation that she said lacked specificity as to legal recourse for consumers and that granted an exemption for car dealers, removing motor vehicles from the definition of “goods.”

Assemblyman Donald P. Wagner (R-Irvine), the committee’s vice chairman, suggested Hueso tried to frame his bill as a civil rights issue.

“We are talking about things that no matter what the [gender] characteristic of the purchaser, the price is decided,” he said. “The weakest among us were discriminated against when they couldn’t get a hotel room or sit at a lunch counter. The weakest among us can buy a blue razor and get the blue razor price.”

Other opponents said the bill created gray areas that could lead to excessive and costly accusations over pricing. Jennifer Barrera, a lobbyist with the California Chamber of Commerce, said she was concerned that small businesses could be sued even when they had valid reasons for their pricing decisions.

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“There is still ambiguity in the statute, and if there is room for ambiguity then it’s going incentivize litigation,” she said. 

Her words echoed concerns from the California Retailers Assn., Grocery Manufacturers of America and the Toy Industry Assn.

“Price determinations are fluid and affected by numerous factors,” the organizations said in a June 20 letter to Assembly Judiciary Committee Chairman Mark Stone (D-Scotts Valley). “By forcing retailers to artificially price products inconsistent with their true market value, SB 899 will lead to price fixing, which could negatively impact the market by interfering with supply and demand.”

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