Previously unreported documents in the Lowe's 2x4 case, combined with additional comments by a key attorney in the case, have shed new light on the role that nonstandard lumber played in what ultimately led to $1.6 million in fines against the home center's California operations. And while the case technically involves one company in one state, it serves as a reminder to all dealers of the importance of reviewing shipment data when lumber comes in and of spot-checking the products received.
One of the previously unreported documents, the initial complaint, alleges in part that Lowe’s erred by advertising products normally measured in nominal dimensions “but whose actual dimensions were not in compliance with minimum size requirements for these types of products. In such cases, the structural dimensional building products were advertised by their alleged nominal dimensions; e.g. 2x4.”
Another document, the stipulation for entry of final judgment, includes in its “whereas” clauses this statement: “It is the position of the People that manufacturers of building and construction products have reduced the sizes of certain building materials and construction products resulting in products that are smaller than the prior commonly recognized dimensions and in some instances the actual size of the products vary between manufacturer and product brand such that two products advertised by the same traditional dimensions may have significantly different actual measurements.” Minimum sizes are set and are maintained by several federal agencies, including the National Institute of Standards & Technology (NIST) and the quasi-governmental American Lumber Standard Committee.
Both the initial complaint and stipulation, filed Aug. 26 in Marin County Superior Court and obtained by PROSALES on Sept. 23, add clarity to what initially was misreported by this publication and other media as a case of Lowe's getting penalized for selling dimensional lumber whose name descriptions didn't match their real sizes; for example, selling what's known as a 2x4 when its real size is about 1.5 inches by 3.5 inches. This supposed violation never figured into the case because it's legal to use nominal sizes when describing certain building products.
But what Lowe's actually did that led to a $1.6 million penalty still remains less than crystal clear. For instance, in its Sept. 12 report to members about the case, the West Coast Lumber & Building Material Association (WCLBMA) stressed another part of the case. “[I]t would appear that the complaint against Lowe’s involved certain products that are not generally regarded as ‘wood’ being labeled as such,” WCLBMA executive director Ken Dunham wrote, “and it also appears that certain other lumber products sold may not have been correctly labeled. It is not solely a matter of product labeling that was incorrect. [Emphasis WCLBMA’s] This is a long-standing complaint that was just recently resolved.”
In an interview with PROSALES late on Sept. 24, Marin County deputy district attorney Andres Perez agreed that one factor was Lowe's advertising non-wood products with dimensional descriptions reserved for products identified in the NIST guidelines. But neither that allegation nor the claim of advertising dimensional lumber that was smaller than NIST minimums "held more sway in bringing the case," he said.
During the interview, Perez also touched several times on what appears to be another factor in bringing the case: What Lowe's knew, and when it knew it.
The complaint alleges: "At all times relevant to this Complaint, Defendant [i.e., Lowe's] was aware in some instances that their advertisements contained product dimensions that were either not the actual product dimensions or did not meet the minimum nominal product dimensions." And in the interview, Perez said that the case "is not necessarily a question that Lowe's was doing anything intentionally wrong. But if they're going to advertise a softwood lumber product as a 2x4, it must meet the nominal standard. In some cases it sold products that did not meet that standard."
That information helps explain why the final judgment touches on the question of when Lowe's would know it is breaking the rules. Getting documentation from the manufacturer appears to be one form of defense, as the final judgment says that Lowe's won't be considered in violation of state law if its ads and bin tags rely on the manufacturer's description of the product's dimensions. Lowe's also can protect itself by changing its ads, bin tags, and other promotions to add the words "actual dimensions" and those real sizes, right below the nominal sizes, when it lists a product.
Even then, Perez urged dealers to be cautious. "Anybody who's making a purchase, if you're a retailer or a consumer, should make sure you get what you paid for," he said. "You should have some quality control in place. I'm not saying you're under an absolute duty ... but if you know or should have know it does not meet the standard, you shouldn't advertise it as such." Perez said he assumes that companies as big as Lowe's have quality-control people on staff, and he said that while smaller companies might not have such staffers, they are likely to have people who are expert about lumber. "If you have experts ... then turning a blind eye when you should have known could be regarded as negligence," he told PROSALES.Dunham, who has been in close contact with state regulators and legal officials, wrote in his memo that the best way for California dealers to avoid hearing complaints is to look to the NIST and ALSC's Voluntary Product Standard PS 20-10. Section 4.1 of the standard reads: "Tally, standard sizes–Lumber shall be tallied board measure or cubic measure. Dressed sizes shall be used when lumber is measured by cubic measure." That statement is followed in italics by this:
Note: The invoices for dressed lumber of standard sizes should show the number of pieces of each nominal size and length as well as the actual thickness and width of such lumber."For lumber dealers, it appears the first action is to make certain that any dimensional lumber received by your business from suppliers has the quantity of items in the shipment, and that the supplier has also listed the material’s nominal and actual sizes on that invoice," WCLBMA's memo said. "This information is generally the first information requested by CA Division of Measurement Standards in the event of an investigation.
"If the product is a non-standard item, it must be clearly labeled with the actual size information and may not be referred to in the common nominal terms for lumber identified in PS 20-10," Dunham continued. "While prosecutions may involve state statutes under the Business & Professional Codes, those actions may cite data from the NIST Voluntary Product Standard PS 20-10."
Part of the final judgment says that Lowe's also can avoid future problems if its bin tags, flyers, and other forms of advertising list actual sizes along with the nominal sizes. (See details.) "The WCLBMA has requested additional clarification on this matter" regarding whether the same principle applies to other dealers in the state, Dunham wrote.