By some accounts discounting by retailers this holiday season has been even more widespread than usual.  As we have noted previously, however, retailers must be careful not to overpromise the true value of any advertised bargain.  If products are not offered often enough at a “regular” or normal price, then the sale price no longer represents genuine savings.  The increasingly prevalent practice of emailing or texting consumers special promotional codes might also be problematic if they misrepresent to consumers that they are enjoying some type of savings that is not generally available to everyone.

While the FTC long ago concluded that enforcement actions against such practices was potentially counterproductive and discouraged pro-consumer discounting, the same cannot be said for the states.  Many states, such as California and New York (and in some cases counties) continue to enforce their own state pricing laws.  What is even more problematic are the few remaining state laws that emphasize how many items were sold at the regular price rather than simply offered for sale.  A recent article in USA Today highlighted the danger in such a standard.  In noting the prevalence of holiday discounting one retail expert was quoted as saying that the “deal has become the norm” and that such practices “train the consumer to never buy at full price.”  While it is difficult to stock up on some items such as perishables and while some consumers will run out a buy a product regardless of whether or not it’s on sale, if retailers have to wait for consumers to buy a significant number of an item before putting it on sale and consumers are waiting for the retailer to put the item on sale before buying, then a standoff results and consumers are likely the losers.

Further, anyone taking the time to read the various state pricing laws will quickly jump to one of two conclusions.  It is likely impossible or impractical to comply with all the varying state pricing laws for a company engaged in nationwide commerce and, even if one could do so, strict compliance would likely put the company out of business as consumers flocked to their rivals who were discounting in violation of one or more state laws. While never easy, the key lies in knowing how far a retailer can go before making a state or local regulator’s New Years to do list.

Barring some must-read development, this will be our last post of 2013.  We’d like to thank all of you for reading and for your comments and feedback.  We hope that each of you enjoy a happy and prosperous New Year.  And since 2013 was most definitely the year of the selfie we couldn’t close out the year without a little self-indulgence, so here you go.