Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 63 62 / Venable Consider the following factors when making “sale” claims: • Do not have “perma‑sales.” Consider flexing your sale and regular price. If a deal is ongoing, it should not be called out in a way that implies it is a limited offer. • Before making a percentage off or a “compare at” price claim, make sure the higher price used for a comparison is a real price. It should be either a price at which you have sold the good recently or a price other retailers have used to sell the same product. Never create a fictitious higher price to make “sale” reductions more attractive. • If you are comparing the price to comparable but not identical merchandise, this needs to be made clear. • “Free” offers, such as “BOGOs,” must really be free. If customers need to pay separate postage and handling for the free item, this must be disclosed clearly and conspicuously. Sale and Free Claims Everyone loves a bargain! Calling out the value of your product, particularly if it is available as a special deal or on sale for a limited time, is often critical to gaining sales and loyalty from deal-savvy customers. And in the age of the Internet, price-comparison shopping has never been easier. The Federal Trade Commission (FTC) has issued guidance for businesses on how to make sales claims. In addition, many states have their own unique laws, making this a complicated regulatory minefield. Many state laws limit the duration of sales and require that goods be offered at a “regular” price before they go on sale. Several class actions have recently alleged deceptive sale pricing as well. Stephen R. Freeland srfreeland@Venable.com +1 202.344.4837 Leonard L. Gordon lgordon@Venable.com +1 212.370.6252