While many focus important questions such as whether or not to brine the turkey and whether to cook the stuffing inside or outside of the bird, many of our clients focus on bigger issues of whether the holiday sales season will put the company in the red or the black.  What used to be just a push for Black Friday, and then extended to include Cyber Monday, now includes pre-Black Friday and specials through December.  In this busy shopping season, retailers are trying to drive traffic, sell merchandise, and clear out winter inventory in anticipation of the coming year.  Shoppers are looking for a bargain and that perfect gift.  Sunday papers, email inboxes, and television commercials all boldly proclaim the greatest sales of the year, and consumers definitely take notice.  With fast moving inventory and quickly changing stock levels, there are times when a retailer might run out of certain items.  Retailers in this position need to pay careful attention to consumer protection laws.

In 2011, as part of its systematic review of all of the agency’s rules and guides, the FTC opened a public note and comment period for the Retail Food Store Advertising and Marketing Practices Rule, better known as the “Unavailability Rule,” to consider whether the rule should be expanded to cover other retailers.  On November 19, 2014, the Commission decided to keep the Rule unchanged.  This means that the Unavailability Rule still only applies to retail food stores. Still, other retailers would be wise to take this Rule’s guidance to heart.
Continue Reading The Unavailability Rule: After the Turkey and Stuffing, Avoiding the Bait-and-Switch?