09/23/2020
What Is Bait and Switch?
Bait and switch is a common deceptive sales practice that advertises an item for sale to entice customers to come to the store. Once the customer arrives in anticipation of the discounted item, he or she is told that the item is not available and is directed toward a more expensive alternative.
How Bait and Switch Works
A business advertises a low-priced item so that customers will come to the store. However, once the customer arrives, he or she may be told that the item is of poor quality and that a more expensive alternative is actually a better value. This may be accomplished by salespeople who disparage the quality of the good or lament about its difficulty to repair or find spare parts for the item. Alternatively, the customer may be told that the item has sold out.
The store may use this tactic to influence customers to purchase similar items at a higher price point. The customer may still be satisfied because he or she receives an item with the same function as the one he or she originally considered. The store benefits by pushing more expensive products off the shelves that may not have otherwise been purchased without the advertisement.
Businesses may advertise a product only to have insufficient supply of the item. Therefore, when customers inquire about the item, the discounted item is no longer available in the store room.
Types of Goods and Services
Bait and switch is more common with goods. For example, bait and switch tactics have been used to sell electronics such as phones, televisions and stereos.
However, bait and switch may also be used for services and other types of intangible items. For example, a lender may advertise a low interest rate. The consumer is then informed that the rate is only for a short period of time or only available for a low loan amount. This then causes the customer to be influenced toward a more expensive loan.
Other common forms of bait and switch advertising are for airline travel, hotels that do not include all fees in their advertisements and home repair companies.
Bait and Switch Legal Protections
Many states have outlawed this practice under their consumer protection laws. Other causes of action may also be available under traditional cases, such as fraud statutes.
Bait and Switch Legal Claims
Individuals who have suffered damages from bait and switch tactics may decide to file a civil lawsuit based on fraud or a violation of state consumer protection laws. However, the cost of pursuing such litigation is usually not warranted for this type of case. If many customers have been affected in a similar manner, they may seek class certification to file a class action lawsuit and split the cost of legal representation.
Additionally, some courts throughout the country have held that such tactics may provide the basis for competing manufacturers and retailers to file a trademark infringement lawsuit.
If a person believes that he or she has fallen victim to this deceptive sales practice, he or she may contact the FTC. Alternatively, he or she may contact the attorney general of his or her state.
FTC Claims
The Federal Trade Commission sets out specific elements for deception cases. First, there must be some type of representation or omission that is meant to deceive the customer. Bait and switch typically falls within this category. Second, the FTC evaluates the alleged practice from the perspective of the reasonable customer, not the purported victim.
Third, the representation must be material to the overall transaction. This requires showing that the tactic is likely to affect a consumer’s behavior or decision regarding the purchase.
Bait and Switch Legal Defenses
Even if a business aggressively pushes a competing product in exchange for the advertised and less expensive one, a plaintiff can prevail only if it can show that the store was not capable of selling the goods advertised. Generally, a business may have a limited stock of a product and may anticipate selling out of the item. Doing so is usually legal if the business includes in the advertisement information about limited quantities or providing a rain check for items that sell out.
According to the definition by the Federal Trade Commission, advertising of this nature is only so if it is insincere and the advertiser has no intention or desire to sell the item. It is generally legal for a business to attempt to upsell customers to buy a more expensive version of the good or service he or she desires.
Protective Practices against Bait and Switch
The easiest way for consumers to protect themselves from this tactic is not to get caught in the first place. They should read the ad carefully for any fine print that limits the product or its quantity. They should also call ahead to see if the item is available. For services, consumers should ask for all quotes to be put in writing. All terms regarding the price, including all fees, taxes and other charges should be clear and in writing.
