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#327 False Advertising

mp3 #327 False Advertising (mp3 file)



If you've answered an ad which sounded too good to be true ... only to find out that it wasn't true, you know that such journeys can be both frustrating and time consuming. You do, however, have some protection against deceptive advertising, as the following questions and answers explain.

Is a store required to have an advertised item available when you get there?

The law requires that each of the advertiser's stores, in the area that an ad is run, must have enough of the advertised product available, at or below advertised prices, to meet a reasonable expectable demand, unless the ad states a limit on the quantity of a particular item. The supply should last each day of the sale. If demand for an advertised item is unpredictably heavy, then a merchant may run out without violating the law.

Does a store have to give rain checks?

California law doesn't require a merchant to give rain checks. (Rain checks allow you to purchase the same merchandise for the reduced price at a later date, if the advertised merchandise is not available when you arrive at the store.) However, you can try asking for a rain check, since some stores do have a policy of providing them. Remember, though, that giving you a rain check will not excuse an advertiser's failure to have enough of the item on hand.

 

Does the picture in an advertisement have to look like the real thing?

Unfortunately, misleading pictures in advertising do occur. Consumers are protected against such practices by very broad consumer protection laws, which prohibit unfair business practices and misleading advertising. The basic rule is--if what is being sold is not what is pictured in the ad, the ad is misleading.

Can a store limit the quantity of advertised goods it will sell?

A merchant cannot refuse to sell advertised items to customers in any quantity that the merchant has in stock, unless the ad mentions a limit on the number that will be sold to a single customer (this law excludes sales to those who intend to resell the items). For instance, if you see an advertisement for cans of soft drinks at $5 a case, but when you get to the store you find a sign on the shelf stating "only one case per customer," you can go to court and sue to recover any money you lost, plus $50.

Can a store advertise an item it doesn't intend to sell?

Let's say a vacuum cleaner is advertised as a "fantastic bargain" for only $69.95. When you go to the store, you see that the machine barely runs--much less picks up any dirt. The salesperson tells you that the vacuum is on sale because no one will buy it. But the salesperson doesn't want you to go away disappointed. He suggests that you consider the "deluxe," more expensive vacuum cleaner, which he is sure you will like much better.

This tactic is an example of what is called "bait and switch" advertising. You are lured into the store by an enticing ad, but the item falls far short of its description, and instead the salesperson attempts to switch you to a more expensive item. California law prohibits advertising goods or services with the intent of not selling them as advertised. So, you have a good argument that the advertiser of the vacuum cleaner violated the law.

Do advertisers have to be able to support their claims?

You have some protection against false advertising claims, but your best protection is to use common sense. If a claim sounds too good to be true--beware. California law requires advertisers to be able to prove advertised claims which are supposedly based on facts. For instance, if a car dealer boasts of the lowest prices in town, he or she must be able to support the claim. However, a more general "puff" statement such as "low, low prices" does not have to be proven.

What if-you are told you won a prize, but then you're given a sales pitch?

If someone offers you a prize or gift, through the mail, by phone, or in person, and intends to make a sales presentation when delivering your gift, you must be told of this intention when the offer is first made. Also, an advertiser can't notify you that you've won a prize, if you must purchase any goods or services to receive it.

Does an advertiser have to tell you an item is used or defective?

Yes. For example, if a store advertises a washing machine as "reduced 35 percent for quick sale," but when you arrive at the store you discover that the machine is defective or used, the law has been violated. Such information must be disclosed in the ad.

Can an ad be literally true but misleading?

Yes. Let's say that you see an ad for "teak dining tables" at only $79.95. When you get to the store, you find that the tables are plastic, and that they are made by a company called "teak". The store manager tells you that there is nothing wrong with the ad, since it is true. The manager is wrong. An ad that is absolutely true, but misleading, is illegal. The test for whether an ad is misleading is what an average, reasonable person would assume to be true from reading the ad.

Does the store have to sell you whatever it advertised?

Even if you were lured into a store because of a deceptive ad, the store probably cannot be forced to sell you the item that you thought was being offered--at the price you expected to pay. For instance, if you answer an ad for "teak tables" at $79.95 that turn out to be plastic and made by a company called teak, a court probably will not require the advertiser to sell you its real $200 teak tables for the $79.95 price. However, the store still can be held responsible for running the misleading ad.

Does the advertiser have to indicate the quantity you must buy, in order to buy an advertised item at the advertised price?

If a store advertises a price for a product that is only sold in packages of two or more, the ad must indicate the number of items you must buy to receive them at the advertised price. For example, an ad cannot say "batteries---10¢ each," if the batteries are in packages of 10 for $1. The ad must state that there are 10 batteries in a package, and that a package costs $1.

Can a store advertise similar products, without indicating which product is being offered at the advertised price?

If two models of the same type of item (such as two models of coffee makers) are both advertised, and only one price is listed, the ad must clearly identify which model is being offered at the advertised price.

Whom do you contact about a misleading ad?

Start with the manager of the business which ran the ad. If you have purchased the product, ask if you can receive your money back. If you still are unable to solve the problem, there are other organizations which may assist you:

-The California Attorney General's Office has a toll free number: 800-952-5225.

-Your local consumer protection agency, or the California Department of Consumer Affairs at 916-445-1254 or toll free at 1-800-952-5210. They are also online at www.dca.ca.gov

-Your local district attorney's office, especially if it has a consumer fraud section (look in the white pages of your phone book under the name of your county for the phone number).

Whether you receive a refund or not, you should report any misleading advertising to governmental authorities. Contact any of these agencies, or your city attorney's office. These agencies can go to court to stop misleading ads, and to recover money, if a large number of consumers are involved.

You may decide to sue the advertiser. In your lawsuit, you may ask the court to award you your actual damages, order the advertiser to stop further publication of the misleading ad, and in certain cases, order the merchant to pay punitive damages (money that the advertiser must pay you as punishment). However, the court probably will not order an advertiser to provide you with the goods or services advertised.

Cases involving $7,500 or less may be brought in small claims court (look in the phone directory under the name of your county for the address). However, you cannot collect punitive damages in small claims court, nor can the small claims court stop the ad from running again. If you want to go to court and a larger amount of money is involved, you should consider contacting a lawyer to pursue the matter outside of small claims court.

This SmartLaw Message is from a pamphlet called, "A Consumer’s Guide to Sales Tactics". For a free copy, visit their website at www.dca.ca.gov or send a stamped, self-addressed, legal-sized envelope to, "Sales Tactics", State Department of Consumer Affairs, 1020 "N" Street, Sacramento, California 95814.

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