How often has it happened that you read about the “deal of the year” with, for example, that flat screen TV you’ve had your eye on, now being on special? You rush off to ABC Traders only to be told, “Sorry Sir, we’re out of stock on that item”. The salesman then convinces you to buy another (and much more expensive!) item…

Bait marketing is a deceptive or misleading advertising strategy, which is intended to lure or persuade consumers to go to the supplier whose objective is that, whilst the consumer is there, he will buy something other than the goods or services advertised.

The supplier advertises these products or services as being available at a low price, but when consumers come to the store to buy the advertised products or services, they are told that the items are either out of stock or unavailable, or that they are available but are now being sold at a higher price.

The Consumer Protection Act (the Act) strictly prohibits this type of practice. In terms of section 30 of the Act, 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.

The Act does not only prohibit deceptive and misleading advertising; it also places a legal obligation on suppliers who advertise particular goods or services as being available at a specified price with an express limitation in respect of the availability of those goods or services from that supplier at that price, to make those goods or services available at that price to the extent of the expressed limits.

If for some reason the supplier cannot supply the goods or services so advertised he can offer to procure another person to supply a consumer with the same or equivalent goods or services of the kind advertised, within a reasonable time, in a reasonable quantity and at the advertised price.

If the consumer unreasonably refuses the offer or accepts the offer and the supplier has supplied or procured another person to supply the goods or services so offered and accepted, the supplier will not be guilty of contravening the provisions of the Act.

However, should the supplier decide not to honour the terms of the advertisement, the aggrieved consumer may file a complaint with the Consumer Commission. The Commission is empowered by the Act to investigate complaints about prohibited conduct and to issue and enforce compliance notices. A failure by the supplier to act in accordance with the compliance notice constitutes a criminal offence which may lead to criminal prosecution.

The matter may also be referred to the Consumer Tribunal, which may impose an administrative fine on the supplier. The administrative fine imposed may not exceed 10 per cent of the respondent's annual turnover during the preceding financial year or R1 million, whichever is less.

Furthermore, a consumer who has suffered loss or damage as a result of prohibited conduct (deceptive and misleading marketing technique) may institute a claim in the civil court after obtaining a certificate from the Tribunal to the effect that the conduct complained of was prohibited by the Act.

It is important to know about and understand your rights as a consumer, and your obligations as a supplier. Should you need case-specific advice it is advisable to consult an attorney who has experience in consumer law.