Consumer Law Library

Guides Against Bait Advertising

16 CFR Part 238 · Guides · in the Code of Federal Regulations 1968-1995 (27 annual editions)

Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.

Latest edition: Library of Congress, 1995 CFR · Earliest edition: 1968 CFR

Text (1995 edition, OCR)

Federal Trade Commission

connection with the solicitation of accounts
for collection are numerous. Listed below are
a few specific examples of representations
which have been prohibited by the Commis-
sion because they were false or deceptive:

1. That the industry member’s organiza-
tion is separated into functional divisions,
such as credit reporting, analytical, tracing,
and collecting.

2. That the industry member employs local
representatives, regional investigators, and
lawyers on his personnel staff in various
States and throughout the world.

3. That collection fees are less than what
the industry member actually charges.

4. That no charges will be made for ac-
counts unless they are collected.

5. That the industry member makes per-
sonal calis on debtors to collect accounts.

6. That the industry member will furnish
credit reports to parties who assign accounts
to him for collection.

(Guide 6]
PART 238—GUIDES AGAINST BAIT
ADVERTISING
Sec.

238.0 Bait advertising defined.

238.1 Bait advertisement.

238.2 Initial offer.

238.3 Discouragement of purchase of adver-
tised merchandise.

238.4 Switch after sale.

AUTHORITY: Secs. 5, 6, 38 Stat. 719, as
amended, 721; 15 U.S.C. 45, 46. :

SOURCE: 32 FR 15540, Nov. 8, 1967, unless
otherwise noted.

§238.0 Bait advertising defined.)

Bait advertising is an alluring but in-
sincere offer to sell a product or serv-
ice 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 mer-
chandise of the type so advertised.

§238.1 Bait advertisement.

No advertisement containing an offer
to sell a product should be published

1For the purpose of this part “advertising”
includes any form of public notice however
disseminated or utilized.

31

§ 238.3

when the offer is not a bona fide effort
to sell the advertised product. [Guide 1]

$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 ori-
gin of the product offered, or which
may otherwise misrepresent the prod-
uct in such a manner that later, on dis-
closure 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 de-
ception. [Guide 2]

§ 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 o#her
merchandise. Among acts or practices
which will be considered in determin-
ing if an advertisement is a bona fide
offer are:

(a) The refusal to show, demonstrate,
or sell the product offered in accord-
ance 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 merchan-
dise 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 rep-
resented or implied in the advertise-
ment,

(f) Use of a sales plan or method of
compensation for salesmen or penaliz-


§ 238.4

ing salesmen, designed to prevent or
discourage them from selling the ad-
vertised product. (Guide 3]

$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 wil] be considered in
determining if the initial sale was in
good faith, and not a strategem to sell
other merchandise, are:

(a) Accepting a deposit for the adver-
tised product, then switching the pur-
chaser 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 dispar-
agement 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 pre-
clude the existence of a bait and switch
scheme. It has been determined that, on oc-
casions, this is a mere incidental byproduct
of the fundamental plan and is intended to
provide an aura of legitimacy to the overall
operation.

PART 239—GUIDES FOR THE AD-
VERTISING OF WARRANTIES AND
GUARANTEES

Sec.

239.1 Purpose and scope of the guides.

239.2 Disclosures in warranty or guarantee
advertising.

239.3 “Satisfaction Guarantees” and similar
representations in advertising; disclosure
in advertising that mentions ‘satisfac-
tion guarantees” or similar representa-
tions.

239.4 “Lifetime”
tions.

239.5 Performance of warranties or guaran-

* tees.

AUTHORITY: Secs. 5, 6, 38 Stat. 719 as
amended, 721; 15 U.S.C. 45, 46.

and similar representa-

32

16 CFR Ch. I (1-1-95 Edition)

SouRcE: 50 FR 18470, May 1, 1985, unless
otherwise noted.

§239.1 Purpose and scope of the
guides.

The Guides for the Advertising of
Warranties and Guarantees are in-
tended to help advertisers avoid unfair
or deceptive practices in the advertis-
ing of warranties or guarantees. The
Guides are based upon Commission
cases, and reflect changes in cir-
cumstances brought about by the Mag-
nuson-Moss Warranty Act (15 U.S.C.
2301 et seg.) and the FTC Rules promul-
gated pursuant to the Act (16 CFR
Parts 701 and 702). The Guides do not
purport to anticipate all possible un-
fair or deceptive acts or practices in
the advertising of warranties or guar-
antees and the Guides should not be in-
terpreted to limit the Commission’s
authority to proceed against such acts
or practices under section 5 of the Fed-
eral Trade Commission Act. The Com-
mission may bring an action under sec-
tion 5 against any advertiser who mis-
represents the product or service of-
fered, who misrepresents the terms or
conditions of the warranty offered, or
who employs other deceptive or unfair
means.

Section 239.2 of the Guides applies
only to advertisements for written
warranties on consumer products, as
“written warranty” and ‘consumer
product”’ are defined in the Magnuson-
Moss Warranty Act, 15 U.S.C. 2301, that
are covered by the Rule on Pre-Sale
Availability or Written Warranty
Terms, 16 CFR Part 702. The other sec-
tions of the Guides apply to the adver-
tising of any warranty or guarantee. :

(50 FR 18470, May 1, 1985; 50 FR 20899, May 21,
1985]

§239.2 Disclosures in warranty or
guarantee advertising.

(a) If an advertisement mentions a
warranty or guarantee that is offered
on the advertised product, the adver-
tisement should disclose, with such
clarity and prominence as will be no-
ticed and understood by prospective
purchasers, that prior to sale, at the
place where the product is sold, pro-
spective purchasers can see the written