Shrinkwrap 'Contract' Found At Costco On... Collagen Peptides (mastodon.social) 74
Slashdot covered shrinkwrap licenses on software back in 2000 and 2002. But now ewhac (Slashdot reader #5,844) writes:
The user Wraithe on the Mastodon network is reporting that a bottle of Vital Proteins(TM) collagen peptides purchased at Costco came with a shrinkwrap contract. Collagen peptides are often used as an anti-aging nutritional supplement. The top of the Vital Proteins bottle has a pull-to-open seal. Printed on the seal is the following: "Read This: By opening and using this product, you agree to be bound by our Terms and Conditions, fully set forth at vitalproteins.com/tc, which includes a mandatory arbitration agreement. If you do not agree to be bound, please return this product immediately."
So-called "shrinkwrap contracts" have been the subject of controversy and derision for decades since their first widespread appearance in the 1970's, attempting to alter the terms of sale after the fact, impose unethical and onerous restrictions on the purchaser, and absolving the vendor of all liability. Most such contracts appear on items involving copyrighted works (computer software, or any item containing computer software). The alleged "validity" of such contracts supposedly proceeds from the (alleged) need that the item requires a copyright license from the vendor to use (because the right to use/read/listen/view/execute is somehow not concomitant with purchase), and that the shrinkwrap contract furnishes such license.
The application of such a contract to a good where copyright has no scope, however, is something new. The alleged contract itself governs consumers' use of, "the VitalProteins.com website and any other applications, content, products, and services (collectively, the "Service")...," contains the usual we're-not-responsible-for-anything indemnification paragraph, and unilaterally removes your right to seek redress in court of law and imposes binding arbitration involving any disputes that may arise between the consumer and the company. Indeed, the arbitration clause is the first numbered section in the alleged contract.
The same contract has been spotted by numerous others — including someone who posted about it on Reddit two years ago. ("When I opened it, encountered a vacuum seal with the following 'READ THIS: by opening and using this product, you agree to...'") But the same verbiage still appears in online listings today for the product from Albertsons, Walgreens, and CVS.
Shrinkwrap contracts. They're not just for software any more...
So-called "shrinkwrap contracts" have been the subject of controversy and derision for decades since their first widespread appearance in the 1970's, attempting to alter the terms of sale after the fact, impose unethical and onerous restrictions on the purchaser, and absolving the vendor of all liability. Most such contracts appear on items involving copyrighted works (computer software, or any item containing computer software). The alleged "validity" of such contracts supposedly proceeds from the (alleged) need that the item requires a copyright license from the vendor to use (because the right to use/read/listen/view/execute is somehow not concomitant with purchase), and that the shrinkwrap contract furnishes such license.
The application of such a contract to a good where copyright has no scope, however, is something new. The alleged contract itself governs consumers' use of, "the VitalProteins.com website and any other applications, content, products, and services (collectively, the "Service")...," contains the usual we're-not-responsible-for-anything indemnification paragraph, and unilaterally removes your right to seek redress in court of law and imposes binding arbitration involving any disputes that may arise between the consumer and the company. Indeed, the arbitration clause is the first numbered section in the alleged contract.
The same contract has been spotted by numerous others — including someone who posted about it on Reddit two years ago. ("When I opened it, encountered a vacuum seal with the following 'READ THIS: by opening and using this product, you agree to...'") But the same verbiage still appears in online listings today for the product from Albertsons, Walgreens, and CVS.
Shrinkwrap contracts. They're not just for software any more...
So (Score:5, Interesting)
Everybody should just go in and buy a bottle and return it the next day and ask for a refund
Re: (Score:2)
Everybody should just go in and buy a bottle and return it the next day and ask for a refund
Presumably if you didn't open it, it will end up right back on the shelf. You'd just be wasting your own time doing this.
Re: (Score:3)
Everybody should just go in and buy a bottle and return it the next day and ask for a refund
Presumably if you didn't open it, it will end up right back on the shelf. You'd just be wasting your own time doing this.
Costco allows opened returns. I have returned boxes of chocolates that tasted disgusting.
Even a bottle of wine that was corked (others bottles of the same vintage were fine).
Many stores will accept similar returns . I once returned ice cream at Safeway that had melted in the store and/or transport and been refrozen. It was easily visible by the texture once opened, no tasting required.
That said, I don't think the return strategy is likely to be effective.
I also doubt the shrinkwrap contract is enforceable,
Re: (Score:3)
Enforceability of EULAs has been a controversial issue and varies by jurisdiction. In the United States, it is possible to enforce a EULA that is shown to the customer after purchase
https://en.wikipedia.org/wiki/End-user_license_agreement [wikipedia.org]
As precedent set by Software companies. Enjoy dystopian capitalism
Re: (Score:3)
I glanced through that.
The page really only addresses software EULAs and they delivery. It's unclear how much of it is applicable to a "dietary supplement EULA", whatever that might be.
The page also mentions that it can in some cases be legal to enforce an EULA that's shown after purchase. But in the case of a dietary supplement, when will it ever be shown ? I take several dietary supplements. I can't remember the last time I loaded up a URL for that supplement. And I certainly was never asked or required t
Re: (Score:2)
The seal on the bottle points to a page that redirects to that terms and conditions contract on the website. The company decided to try re-use the website T&Cs without updating the language.
That doesn't make the headline click-baity or untrue. It just proves at least one person at the company is a dumbass and a lot of people didn't call that person out on it (most likely because that one person is upper management).
Re: (Score:2)
That's why I either mark up a paper one with my own terms, or put a sticky note with my own terms over one shown on a screen. Those terms include "...by allowing me to proceed, you agree to my terms." What's good for the goose is good for the gander.
Re: (Score:2)
Re: So (Score:2)
Re: (Score:2)
They bill the cost of returns to the supplier/manufacturer. Lots of returns would mean those bills come to more than what they receive from selling the product.
Bad path - just needs courte precedent (Score:5, Insightful)
Conjecture: There will be repeated attempts to put shrinkwrap licenses or arbitration clauses on low-cost consumer products until there is a federal court legal precedent established.
Once the precedent is established, every company will put a 'no matter what this product does to you, how ill you become, or if you die; the company's liability is limited to the original purchase price and all claims against the company must go individually 1 by 1 through a complicated, lengthy and costly process to get a customers $12.99 back.
Conjecture: Company profits will explode because product liability will be limited at the time the product is purchased with a known maximum liability.
1,000,000 bottles sold at $10 per bottle, with 0.01% rate of serious illness leads to 100 possible claims against the company. 100 x $10 is $1000.00 and then insurance actuaries will write a policy for $10,000 and charge the company $250 a year....
Re: (Score:2)
Conjecture: There will be repeated attempts to put shrinkwrap licenses or arbitration clauses on low-cost consumer products until there is a federal court legal precedent established.
Once the precedent is established, every company will put a 'no matter what this product does to you, how ill you become, or if you die; the company's liability is limited to the original purchase price and all claims against the company must go individually 1 by 1 through a complicated, lengthy and costly process to get a customers $12.99 back.
Conjecture: Company profits will explode because product liability will be limited at the time the product is purchased with a known maximum liability.
1,000,000 bottles sold at $10 per bottle, with 0.01% rate of serious illness leads to 100 possible claims against the company. 100 x $10 is $1000.00 and then insurance actuaries will write a policy for $10,000 and charge the company $250 a year....
I'm glad most civilised countries have dealt with this already by making shrinkwrap contracts void. You can't be held legally liable to a contract you could not have reasonably seen prior to agreeing to it, nor can your consent be given implicitly, for a contract to be binding it needs to be expressly agreed to.
You definitely cant give up your statutory rights via a contract, let alone a shrinkwrap contract.
The best a shrinkwrap contract can do is give limited liability against being sued for things e
Re: (Score:2)
Re: (Score:2)
Likely better to just open all the licenses on the shelf to help perspective buyers read them.
lolwut? (Score:2)
Re: (Score:2)
Ignoring it is the attitude that lets this B.S. proliferate, and hurt you in the end.
Return the stuff instead. Opened.
Re:lolwut? (Score:5, Informative)
...until Disney claims that their shrinkwrap stuff forbids you to sue them for the death of your wife.
Re:lolwut? (Score:4)
The Disney case was even more evil, because they made the EULA you signed apply to a completely unrelated product.
Re: (Score:2)
Re: (Score:2)
contract for what? (Score:1)
If the contract refers to "services" and is talking about a web site, this may not be a problem. The purchaser probably did not know that a service was bundled with their vial of goo. Even if they did, they were probably aware that such services are usually subject to terms tha are disclosed on the web site. And if the web site is public, clearly they were not even purchasing that service.
Does the contract actually say that the PRODUCT is subject to terms and waives liability? You can write anything in a co
Re:contract for what? (Score:5, Informative)
None of this bullshit is going to last 10 seconds in court.
Corporations will make sure this ends up before the supreme court. Care to guess which way the ruling will fall?
Re: (Score:1)
None of this bullshit is going to last 10 seconds in court.
Corporations will make sure this ends up before the supreme court. Care to guess which way the ruling will fall?
I imagine my guess is the opposite of yours.
We shall see.
Re: (Score:3, Insightful)
Care to guess which way the ruling will fall?
Does Clarence Thomas need a second RV?
Re: (Score:3)
In most states for a contract to be valid both parties must receive something of value. The company wants you to give up your right to sue in whatever court is appropriate, but doesn't state what they give you in return. For software it might be a license to use the copyrighted software, but for vitamins or other OTC medication it doesn't state what benefit you receive from agreeing to the contract.
My guess is this is similar to the stickers on consumer products that state "opening this seal invalidates t
Re: (Score:3)
In most states for a contract to be valid both parties must receive something of value. The company wants you to give up your right to sue in whatever court is appropriate, but doesn't state what they give you in return.
Attaching a contract to the product means the product is the thing of value provided, it just isn't provided unconditionally, and the payment you made for the product is the consideration that binds the contract. That has already been established in law. These contracts are legally valid.
My guess is this is similar to the stickers on consumer products that state "opening this seal invalidates the warranty"
No it's not. The whole opening the seal invalidates the warranty business would be a valid contract (as part of the purchase of the product - see above), but the issue is your can't contractually agree to break the law. The
Re: (Score:2)
The consumer receives no consideration. There is no contract.
At the time the consumer opens the seal and allegedly agrees to a contract they have already purchased the product.
The product is already the consumer's property so it can't be used as consideration for a new contract.
Re: (Score:2)
The consumer receives no consideration. There is no contract.
You literally get the product with the conditions attached. The fact that you read it afterwards is not relevant. For the record your opinion on this is completely irrelevant. The concept you are discussion has been tested and accepted in law - you can buy a product with an attached contractual conditions, and it is *not* considered a new contract in any way.
For the record of why your reasoning doesn't pass legal muster: For the contract to not be valid you need to be in a position for the contract to be ir
Re: (Score:2)
Re: (Score:2)
I hate replying to my own post, but since Slashdot doesn't have an edit function after over twenty years, I have to do it this way.
If the EULA is inside the top of the bottle, how the hell... Oh, I give up.
Re: (Score:2)
Your conditions are met with an ability for redress to the consumer. If the consumer has the right to unconditionally back out of the purchase if they don't agree the terms, it doesn't matter that they can't read the terms in the store, it matters that they have the ability to read the terms before opening the product. If the store doesn't accept refunds then you'd have a very strong case that the EULA wouldn't apply.
Re: (Score:2)
I see and agree with your point. In the case of software EULAs it's different. I know, not the original topic here. But before the age of buying software online through digital distribution services (e.g., Steam, GOG) there was a different issue. You go to the store, buy the software, get home, start to install software, and then get hit with a 15 page EULA. Most people just click through the damned thing, which I think any reasonable person would understand. On the other hand, if you try to return the item
Re: (Score:2)
The only contract here is between Wraithe (the consumer) and Costco, which was made at the point of sale. After the he owned the bottle and its contents. He has no contract with Vital Proteins at all.
Re: (Score:2)
They try to split it as:
Your contract with Costco is to acquire a branded bottle with something in it.
Then they want you to agree to a usage license if you want to ingest the content of the bottle.
That's the very same model as when you buy a music album on a media CD, Vinyl, Cassette.
The store and you contract to acquire the media.
When you listen to the music, you "agree" to the usage license contract with the music publisher.
I do not pretend it is fair. Just it is a known model of adding a usage license to
Re: (Score:2)
I think the FCC should go after them for misleading the purchaser of their rights.
Unless the shrink-wrap contract is emitting radio waves, that'd probably be better handled by the FTC instead.
Re: (Score:2)
Until the SCOTUS says that the FTC has no authority in this case.
Binding arbitration (Score:5, Interesting)
Almost every terms of service these days includes a binding arbitration agreement. It's getting to the point where in many cases there is no alternative to acquiescing, since all the competitors are doing it, too. I'm sure that in 99% of cases, users just click "I Agree" and don't even realize that they are giving up important rights.
The law needs to be changed so that whenever a customer is giving up their rights in this way, the company needs to first obtain an actual signature from the customer made in the physical presence of a notary public. Not only would this make it clear that they are signing away important rights, but it would also cut way down on all these nuisance contract terms. If a company really thinks that it can't risk being sued in court, it would still be free to instruct their customers to head down to their local credit union or UPS store, sit down with an associate, and sign the papers.
Re: Binding arbitration (Score:2)
What's silly is arbitration is really expensive. Because you're basically hiring a judge to do arbitration as a private citizen. Expect a bill for $500-2500 and hour. You and the company would split that.
Re: (Score:3)
Not American hence use of 'your', but my country has some similar attempts once in a while (UK). To my knowledge they have never stood up at consumer level, though I believe it's possible in company negotiations.
Re: (Score:2)
The problem here is unequal negotiation, not the specific terms "agreed" upon. I'd see nothing wrong with, for example, "We'll pay you $X to agree to this extra term" as a separate clause you can accept or reject.
Re: (Score:1)
Re: (Score:2)
Funnily enough the DMCA.
Specifically the anti-circumvention provisions in Section 1201.
There is no technical reason you couldn't. Just legal. Just like there's nothing stopping say a teacher from stabbing they eyes of small children with pencils. Even if the pencil says don't do it, they still can!
not a valid contract (Score:3)
Both parties have to have a similar understanding of a contract, and of course know they are agreeing to a contract. Sure there are judges out there that are dumb asses and want to ignore centuries of precedent.
Additional, that I as a consumer would likely assume that something on a shelf is a Regular Sale means it is bound by the UCC and probably not by the legalese in the fine print.
Expect different results from different appeals jurisdiction. Who knows what SCOTUS would do with it, but they're unlikely to ever pick it up.
Re: (Score:2)
Sure there are judges out there that are dumb asses and want to ignore centuries of precedent.
Since you're such a stickler for precedent it should be noted that the precedent has been set that these contracts are in fact enforceable. To address your points directly:
- Understanding of contract : That is on a per contract basis and depends on the wording of the contract. There's nothing about the nature of this contract that is relevant to this point.
- Know they are agreeing : You have to be in a position to be required to agree to the contract in an reversable way. If the product can't be used withou
Change the law (Score:5, Insightful)
In Denmark, Europe, shrinkwrap licenses are not valid for end users / consumers.
The consumer is considere a weak party, and in a situation where he is not in a situation to negotiate the contract. Thus the contract can not be valid.
A contract is considered an negotiated agreement between 2 uqla parties - both of which will gain something from it.
It ios just like a signature put on a paper with a gun to your head is not binding. You are not in a position to negotiate.
The USA should start to get some sensite consumer protection law (and citizenprotection laws)
Re: (Score:3)
Yeah, repeat that mantra to yourself while your country implements the libertarian dystopia step-by-step. We'll see how this works for you.
Re: (Score:3)
That fact that you call something like that fascist says a lot more about you then it does about Denmark's laws.
Re: (Score:2)
Re: (Score:2)
Tell me that you want to run a company that screws its customers over with dangerous products without actually saying it out loud.
Re: (Score:2)
The USA should start to get some sensite consumer protection law (and citizenprotection laws)
In the USA, the citizens do not matter. Only businesses matter. Why spend time protecting things that do not matter?
This is dumb, but... (Score:2)
Mandatory arbitration should be banned. It shouldn't be possible to sign away fundamental rights to legal recourse.
Nothing avoids bystander liability (Score:1)
Just opt-out! (Score:5, Interesting)
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THESE TERMS AND CONDITIONS FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO VITAL PROTEINS, LLC,c/o Legal Department, 3400 Wolf Road, Franklin Park, Illinois, 60131. To be effective, your Opt-Out Notice must contain your name, address, and signature. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, all other parts of these Terms and Conditions will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
Just flood them with notices everyone!
Re: (Score:2)
Make a bunch of stickers that say "weird legal crap if you break the shrink wrap" and secretly put them on the shrink wrap so that the vendor has to break it to get them off. Soon after the news story breaks, the feds will require clear la
Re: (Score:1)
Re: (Score:2)
Lol I'm already opted out by not having read nor agreed to their terms. And how gullible do you have to be to pay money to send these creeps a copy of your signature and your personal info?
Cickbait headline . Even Slashdot has "Terms" page (Score:2)
The EULA is for the web site, not for the product. It's linked from the homepage of the manufacturer's web site under "Terms and conditions".
Just about every commercial web site has such a page. Even this one.
Weird that it would be referred to on the supplement packaging. But still, I think someone had an axe to grind, or it was a very slow news day, or both.
Re: Cickbait headline . Even Slashdot has "Terms" (Score:2)
Re: (Score:2)
TFS says that this is about http://vitalproteins.com/tc , which is in fact the terms of conditions for using the web site. Which makes no sense to impose on someone not even using said web site.
I could not read what it says in the image you linked to, on account that it is printed very small, and the picture appears to be low resolution. If I were to encounter this seal in person, I probably could not read it, on account of my macular degeneration. Even with prescription glasses, I cannot read most FDA food
Re: Cickbait headline . Even Slashdot has "Terms" (Score:2)
Re: (Score:2)
I did of course previously zoom in Firefox using the mouse, which is one level of magnification. The text did not become readable. I just tried again with CTRL + repeatedly. It wasn't until the image filled the full height of my 32" monitor that the text became legible. I think the color choice makes it worse. Call it a complaint if you will, but to me it's an explanation.
How legible is cyan text on a white background ?
ChatGPT said:
Cyan text on a white background generally has low legibility. The contrast b
Re: Cickbait headline . Even Slashdot has "Terms" (Score:2)
Re: (Score:2)
Yes, but if you sign up for a free trial of Disney Plus, that gives Disney the right to poison your wife[1] 5 years later without recourse.
[1] Probably also applies to husbands and other relatives.
I've never understood (Score:2)
That more or less invalidates the meaning of copyrights for a writer or artist.
How can that be considered "reasonable"? or legal?
roots of evil (Score:2)
This is a symptom of two roots of evil:
1. Forced arbitration.
2. Waiving negligence liability.
Both of those should be made illegal. Unfortunately, a "liberal" scotus has said #1 is just fine. I'm not sure about #2, but probably same.
By reading this email you absolve me of any and (Score:2)
New but no weirder (Score:2)
AFAIK there's not a single word in copyright law which explicitly mentions licenses. Having a shrinkwrap "contract" on a loaf of bread is no weirder than having it on a floppy disc. Oh, it is weird and a sign of bad faith by the seller, but it's not any weirder.