When an Advertised Offer Is Not the Offer You Get

Answer first: an advertised offer has to be a real offer

The federal guides on this subject open with one sentence and everything else follows from it.

An advertisement containing an offer to sell a product should not be published when the offer is not a sincere effort to sell that product.

So the question to ask about a headline price is not whether it is low. It is whether the seller means it.

The guides then do something unusually useful. They list the behaviors that show an offer was never sincere, and every one of them is something a shopper can watch for.

What the guides call bait advertising

The definition is short and it names a motive, which regulations rarely do.

Bait advertising is described as an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell.

Its stated purpose is to switch consumers away from buying the advertised merchandise, so that something else can be sold. That something else is usually at a higher price, or on a basis more advantageous to the advertiser.

Then comes the line that describes an intake funnel better than anything written since. The primary aim of a bait advertisement is to obtain leads as to persons interested in buying merchandise of that type.

A footnote in the guides defines the word advertising broadly. For this part it takes in any form of public notice, however it is circulated or used.

That breadth matters online. A quiz landing page, an email, a paid social post and a plan comparison are all public notices under that definition.

The first contact is the part that counts

Two rules sit under the heading of the initial offer, and the second is the one people find surprising.

The first says no statement or illustration should create a false impression of the grade, quality, make, value, currency of model, size, color, usability or origin of the product offered. Nor should it otherwise misrepresent the product so that a buyer may later be switched to another.

The second is the hard one. Even though the true facts are subsequently made known to the buyer, the law is violated if the first contact or interview is secured by deception.

Read that against a signup flow. A correction on screen twenty-five does not undo an impression created on screen one.

That is the legal shape of a familiar experience. A figure pulls you into a questionnaire, and a different figure appears at the end of it.

Six behaviors the guides say to weigh

Under the heading on discouraging the purchase of advertised merchandise, the guides list the acts that will be considered in deciding whether an offer was made in good faith.

Refusing to show, demonstrate or sell the product on the terms of the offer is the first.

Disparaging the advertised product by acts or words is the second, and the guides include disparagement of its guarantee, credit terms, availability of service, repairs or parts.

Failing to have a sufficient quantity available is the third, and it carries an exception that is discussed below.

Refusing to take orders for delivery within a reasonable period of time is the fourth.

Showing or demonstrating a product that is defective, unusable or impractical for the purpose implied in the advertisement is the fifth.

The sixth reaches inside the seller. It covers a sales plan or method of compensating salespeople that is designed to prevent or discourage them from selling the advertised product.

The supply clause, read exactly

The third behavior in that list is the one most often quoted out of shape, so it is worth reading in full.

It covers the failure to have available at all outlets listed in the advertisement a sufficient quantity of the advertised product to meet reasonably anticipated demands.

Then it names the cure. That failure counts against the seller unless the advertisement clearly and adequately discloses that supply is limited, or that the merchandise is available only at designated outlets.

So a line about limited supply is what the guides expect from an advertiser who genuinely has limited supply. It is a disclosure, not a sales device.

That reading cuts both ways for a shopper. A scarcity line attached to an offer the seller can fill indefinitely is doing something other than disclosing.

What happens after you have said yes

A separate heading covers the period after the advertised product has been sold, and it names four things.

Accepting a deposit for the advertised product, then switching the purchaser to a higher-priced product, is the first.

Failing to deliver the advertised product within a reasonable time, or to make a refund, is the second.

Disparaging the advertised product or its guarantee by acts or words is the third, which repeats the earlier list because it can happen on either side of the sale.

Delivering a product that is defective, unusable or impractical for the purpose implied in the advertisement is the fourth.

The guides describe this whole family as unselling, with the intent and purpose of selling other merchandise in its stead.

The note at the end that answers the obvious objection

There is a note appended to the part, and it exists to close a defense.

Sales of the advertised merchandise do not preclude the existence of a bait and switch scheme.

The note continues that on occasion such sales are a mere incidental byproduct of the fundamental plan, intended to provide an aura of legitimacy to the overall operation.

This matters for how a reader weighs testimony from other buyers. Somebody having received the advertised offer does not settle what the offer was for.

What kind of instrument this is

These are guides, not a statute, and the difference is written down in the Commission's own regulations.

Industry guides are administrative interpretations of laws administered by the Commission, for the guidance of the public in conducting its affairs in conformity with legal requirements.

They provide the basis for voluntary and simultaneous abandonment of unlawful practices by members of industry.

And failure to comply with the guides may result in corrective action by the Commission under applicable statutory provisions.

So a guide is neither decoration nor a private right of action. It is the agency stating how it reads a law it enforces.

The bait guides name their own authority as the sections of the Federal Trade Commission Act on unfair methods of competition and unfair or deceptive acts, and on the Commission's investigative powers.

Reading a weight-loss offer with the list in hand

None of the behaviors above is visible from a homepage, but several leave traces a shopper can check.

Find out whether the advertised thing can actually be bought as advertised. If the low figure applies only to a strength, a term or a bundle you cannot select, the offer and the product have come apart.

Notice what happens to the advertised option once you are inside the flow. Being told the cheaper plan is unsuitable, slower, or not recommended is the disparagement pattern rather than clinical advice.

Check whether the advertised item is deliverable. An offer that cannot be shipped in a reasonable time is on the list.

Watch the moment after payment. A switch to a higher-priced product after a deposit is the first named behavior on the post-sale list.

And treat a supply line as information rather than pressure. If it is true, it belongs there; if it is decoration, it is telling you about the seller instead of the stock.