Arrested in Sephora for Shoplifting; When is a Free Sample Not Free?

Shoplifting under N.J.S.A. 2C:20-11 of the New Jersey Criminal code is one of the most common crimes committed in the state of New Jersey, and can often times be accused over mistake of fact or misunderstanding between vendor and customer. Specifically, there have been a large number of cases in recent years stemming from the popular women’s cosmetics store Sephora. The high number of cases stemming from this vendor revolve around its policies concerning free samples, which are not followed strictly by their sales employees, but can be enforced stingily by their anti-theft team.

Title 2c of the New Jersey Criminal code outlines shoplifting in its entirety as one of six offenses; however, we will be looking at the statute as it deals with purpose or intent. Specifically did you mean to take something and not pay for it? What that your intent? N.J.S.A 2C:20-11b(2), outlines the types of cases accused shoplifters generally encounter at Sephora. This section of the statute outlines that it is considered shoplifting,

“(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.”

Under N.J.S.A 2C:20-11a(6), “‘Conceal’ means to conceal merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.” There is a presumption that a person who conceals and is found with concealed merchandise outside the store was looking to deprive the merchant of payment.

Essentially, the majority of shoplifting cases related to Sephora contain a common theme of accused concealment. Accused shoplifters have in some way taken products associated with a retail value in the store and placed them in a bag or in their clothing. The problem with this is twofold.

First the key word in N.J.S.A 2C:20-11b(2) is “purposefully” or intentionally. Second and most importantly as it applies to the statute is that according to their website, Sephora offers free samples to every customer in their store, but there is some discrepancy as to how many samples a customer can actually get. On the community section of the Sephora website, where customers talk with each other about their experiences, it is a commonly understood fact that if you simply ask the workers at a lot of stores, they will either give or direct you to more than just 3 free samples, which is the number the Sephora website specifically outlines. In addition, there is also a “VIB Rouge” status conveyed on those who purchase more than $1,000 worth of Sephora products a year. These VIB Rouge members get unlimited free makeovers in the store. The ability to use products in the store is also a feature most Sephora’s proudly offer. The issue that arises here is that spending time applying the makeup after receiving some free samples, may make people forget if they picked up a product that was not paid for.

This has led to a lot of confusion between consumer and merchant and likely more than a few misinformed arrests, as employees whose jobs are to prevent shoplifting in a busy retail store are not always privy to all of the samples given out by individual workers. Essentially, this shows that the lax store policies on free merchandise coupled with strict shoplifting prevention actually baits customers into false accusations of shoplifting. The combination of free samples, free makeovers, coupled with a dizzying array of small pocket sized products, all make it impossible for shoppers to remember whether the product they have in their pocket was free or required payment. In addition, many shoppers bring their own Sephora products into the store to compare what they have with what’s new. All of this adds to the confusion and makes it very difficult for the State of New Jersey to meet its burden and show intent.

For innocent shoppers who find themselves in a situation like this, the State of New Jersey has a high burden of proof, outlined above in N.J.S.A 2C:20-11b(2), showing that an individual accused of shoplifting had intentions of denying the merchant the full value of the products. The state must specifically show intent. However, it is difficult to show this intention when there is confusion over whether the products are free. There is no intent to deprive merchants’ payment if the consumer reasonably believes the product is a free sample. In cases such as these, where it is well-documented that Sephora has cavalier processes of handing out free merchandise, the State will have a tougher time showing that an accused shoplifter acted with intent to deprive payment. If it can be reasonably doubted that the accused purposefully took products with the intention to deprive the seller of the value of said products, the accused will likely not be found guilty. Therefore, in specific cases of Sephora shoplifting charges, casting this doubt should be at the forefront of any defense due to the confusion surrounding Sephora policies, what is free and what isn’t.