Bait Marketing: When an Advertised Price Has to Be Honoured

The advertisement is unambiguous. The television is R4,999, the sale starts Friday, and the store opens at eight. You are there at ten past, and there are none — there were three, they went at three minutes past eight, and would you like to look at this other model at R7,499?

Section 30 of the Consumer Protection Act 68 of 2008 is about exactly this, and it is more demanding of the retailer than most shoppers realise.

The prohibition

Section 30(1):

"A supplier must not advertise any particular goods or services as being available at a specified price in a manner that may result in consumers being misled or deceived in any respect relating to the actual availability of those goods or services from that supplier, at that advertised price."

Read what the test is. It is not whether the supplier intended to deceive. It is whether the advertisement was in a manner that may result in consumers being misled or deceived about the actual availability of the goods at the advertised price.

An advertisement that draws a queue for three units, with nothing on its face suggesting there are three, is squarely what the subsection describes.

Stated limits are binding commitments

Section 30(2) is the provision to quote, and it does more work than the prohibition:

"If a supplier advertises particular goods or services as being available at a specified price, and the advertisement expressly states a limitation in respect of the availability of those goods or services from that supplier at that price, the supplier must make those goods or services available at that price, to the extent of the expressed limits."

Two consequences, and they pull in opposite directions for the retailer.

A stated limit protects the supplier — and binds it. "Twenty units per store" means the advertisement is not misleading about availability, and it also means twenty must actually be there at that price. A store that advertises twenty and stocks four has not complied with section 30(2).

An unstated limit protects nobody. "While stocks last" expresses no limitation at all — it states a truism. "Subject to availability" is the same. Neither tells a consumer anything about actual availability, which is what section 30(1) is concerned with.

That is the practical heart of it. The retailer's own choice of words decides which subsection it has to answer to.

The defence, and how narrow it is

Section 30(3) gives the supplier a defence, but only on specific terms. It requires that the supplier:

• offered to supply or to procure equivalent goods or services within a reasonable time, in a reasonable quantity, and at the advertised price; and
• the consumer either unreasonably refused that offer, or accepted it and received the goods or services.

Every element of that matters.

Equivalent, not "an alternative we have in stock". A different brand at a similar specification may be equivalent. A lower-specification model is not.

At the advertised price. This is the element that defeats most attempts to rely on the defence. An offer of a comparable item at its own higher price is not an offer at the advertised price, and the defence does not arise.

Within a reasonable time, in a reasonable quantity. A supplier may procure rather than supply from stock — a rain check, in ordinary language — but it has to be within a reasonable period and in a quantity that matches what was advertised.

Unreasonably refused. A refusal is not unreasonable simply because the consumer wanted the advertised item. Where the substitute is genuinely equivalent and at the advertised price, refusing it is harder to justify.

What to do when the shelf is empty

Keep the advertisement. The pamphlet, the screenshot with the date, the photograph of the in-store poster. Section 30 is entirely about what the advertisement said, and an advertisement you cannot produce is an argument you cannot make.

Read it for a stated limit. If there is a number — per store, per customer, total units — that is section 30(2) and the supplier must supply to that extent. If there is no number, "while stocks last" is not a limit.

Ask for the section 30(3) offer explicitly. "Are you offering to supply or procure equivalent goods, within a reasonable time, at the advertised price?" That sentence tells you immediately whether the store is applying the defence or improvising.

Do not accept a substitute at a higher price and then complain afterwards. Accepting the offer is one of the two ways the defence succeeds.

Ask for a rain check in writing. Procuring within a reasonable time is expressly within the defence, so a supplier willing to order it in at the advertised price is doing what the section contemplates. Get the price and the timeframe recorded.

Escalate in writing. The National Consumer Commission and the provincial consumer affairs offices take these complaints, and a pattern of advertised specials with negligible stock is exactly the kind of conduct they exist to look at. For financial-sector suppliers, where to complain about a bank, insurer or credit provider sets out the routing.

A worked comparison

Three versions of the same advertisement, and three different positions.

Version one: "Smart TV R4,999. Sale starts Friday." No limitation stated. If four units per store go in the first five minutes and the campaign ran for a week, the question under section 30(1) is whether the advertisement was in a manner that may result in consumers being misled about the actual availability of that television at that price. The retailer's difficulty is that its own advertisement said nothing that would have told anyone otherwise.

Version two: "Smart TV R4,999. While stocks last." Materially the same position. The phrase expresses no limitation, so section 30(2) has nothing to bite on, and section 30(1) asks the same question as version one.

Version three: "Smart TV R4,999. 8 units per store." Now section 30(2) applies. The retailer has stated a limit, the advertisement is not misleading about availability, and the retailer must have eight per store at that price. If a store had three, it has not supplied to the extent of its own expressed limit.

The instructive part is that version three is better for the retailer, and it is the version fewest retailers use. Stating a number closes off the section 30(1) argument entirely. Refusing to state one leaves it wide open.

What a compliant advertisement looks like

For anyone running the promotion rather than chasing it, the section effectively supplies a checklist.

• State the quantity, per store or in total. A number is a defence; a phrase is not.
• State the period, and honour the price for it.
• Hold the stock you advertised, at the advertised price, for the stated limit.
• Plan the substitute in advance. If the section 30(3) defence may be needed, decide now what equivalent goods will be offered and confirm they can be supplied at the advertised price — not at their own price.
• Brief the floor staff. Most breaches are not decisions; they are a cashier improvising at a till because nobody told them what the store's position is.

The advertisement and the shelf are different sections

This trips people up, because both feel like "the price was wrong".

The advertisement said R4,999 and there was no stock — that is section 30, and the question is availability.

The shelf said R4,999 and the till said R7,499 — that is a different section, dealing with displayed prices, where the rule is that you pay the lower of two concurrently displayed prices and a supplier escapes an error only after correcting the display and taking reasonable steps to inform consumers. We cover that separately.

The booking was taken and could not be honoured — that is the overselling provision, with a refund, interest and compensation for costs directly incidental to the breach.

Suppliers wanting to stay on the right side of all three will find the compliance overview in Consumer Protection Act obligations for a small business.

Frequently asked

The advert said R4,999 and the store had none. Is that illegal? Section 30(1) prohibits advertising goods at a specified price in a manner that may mislead consumers about their actual availability at that price. Whether it was breached depends on what the advertisement said and what was in fact available.

Does "while stocks last" protect the retailer? It expresses no limitation. Section 30(2) speaks of an advertisement that "expressly states a limitation in respect of the availability" — a number, not a phrase.

The advert said "10 per store". Must they have ten? Section 30(2) says the supplier must make the goods available at that price to the extent of the expressed limits. Ten is the commitment.

They offered me a different model instead. The section 30(3) defence requires an offer of equivalent goods or services, within a reasonable time and in a reasonable quantity, at the advertised price. A higher-priced substitute does not meet it.

Can they give me a rain check instead? Procuring equivalent goods within a reasonable time at the advertised price is within the defence. Get the price and the timeframe in writing.

What if I accept the substitute and then change my mind? Accepting the offer is one of the two routes by which the supplier's defence succeeds. Decide before you accept.

Does this apply to online adverts? Section 30 speaks of advertising goods at a specified price, without limiting the medium. Screenshot the page with the date visible, because a website can be changed without trace.