16 CFR PART 238
Sec. 238.0 Bait
advertising defined.1
Bait advertising is an alluring but insincere offer to sell a product or service which
the advertiser in truth does not intend or want to sell. Its purpose is to switch
consumers from buying the advertised merchandise, in order to sell something else, usually
at a higher price or on a basis more advantageous to the advertiser. The primary aim of a
bait advertisement is to obtain leads as to persons interested in buying merchandise of
the type so advertised.
Sec. 238.1 Bait
advertisement.
No advertisement containing an offer to sell a product should be published when the
offer is not a bona fide effort to sell the advertised product. [Guide 1]
Sec. 238.2 Initial offer.
(a) No statement or illustration should be used in any advertisement which creates a
false impression of the grade, quality, make, value, currency of model, size, color,
usability, or origin of the product offered, or which may otherwise misrepresent the
product in such a manner that later, on disclosure of the true facts, the purchaser may be
switched from the advertised product to another.
(b) 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. [Guide 2]
Sec. 238.3 Discouragement
of purchase of advertised merchandise.
No act or practice should be engaged in by an advertiser to discourage the purchase of
the advertised merchandise as part of a bait scheme to sell other merchandise. Among acts
or practices which will be considered in determining if an advertisement is a bona fide
offer are:
(a) The refusal to show, demonstrate, or sell the product offered in accordance with
the terms of the offer,
(b) The disparagement by acts or words of the advertised product or the disparagement
of the guarantee, credit terms, availability of service, repairs or parts, or in any other
respect, in connection with it,
(c) The failure to have available at all outlets listed in the advertisement a
sufficient quantity of the advertised product to meet reasonably anticipated demands,
unless the advertisement clearly and adequately discloses that supply is limited and/or
the merchandise is available only at designated outlets,
(d) The refusal to take orders for the advertised merchandise to be delivered within a
reasonable period of time,
(e) The showing or demonstrating of a product which is defective, unusable or
impractical for the purpose represented or implied in the advertisement,
(f) Use of a sales plan or method of compensation for salesmen or penalizing salesmen,
designed to prevent or discourage them from selling the advertised product. [Guide 3]
Sec. 238.4 Switch after
sale.
No practice should be pursued by an advertiser, in the event of sale of the advertised
product, of "unselling" with the intent and purpose of selling other merchandise
in its stead. Among acts or practices which will be considered in determining if the
initial sale was in good faith, and not a stratagem to sell other merchandise, are:
(a) Accepting a deposit for the advertised product, then switching the purchaser to a
higher-priced product,
(b) Failure to make delivery of the advertised product within a reasonable time or to
make a refund,
(c) Disparagement by acts or words of the advertised product, or the disparagement of
the guarantee, credit terms, availability of service, repairs, or in any other respect, in
connection with it,
(d) The delivery of the advertised product which is defective, unusable or impractical
for the purpose represented or implied in the advertisement. [Guide 4]
Note: Sales of advertised merchandise. Sales of the advertised
merchandise do not preclude the existence of a bait and switch scheme. It has been
determined that, on occasions, this is a mere incidental byproduct of the fundamental plan
and is intended to provide an aura of legitimacy to the overall operation.
Footnotes
1. For the purpose of this part "advertising" includes any
form of public notice however disseminated or utilized.