What Is The "Bait and Switch" And When Is It Illegal?

We get a lot of people writing us about the “bait and switch.” Often the complaint is shady, but not really “bait and switch.”

The FTC has some guidelines about what is “bait and switch” advertising and what isn’t. Basically, “bait and switch” deals with a disingenuous advertisement. There needs to be an advertisement for the bait in order for there to be a “bait and switch.” Here are some quick guidelines:

• If the seller has the ability to sell you the “bait” but talks you into buying something else. That’s not “bait and switch.”

• If the seller runs out of the “bait” but the advertisement specifies limited quantities, that’s not “bait and switch.”

• If the seller does not intend to sell you the “bait,” and does any of the following in the course of selling other merchandise, then it’s probably the “bait and switch”:

    Disparages the bait or its warranty, credit terms, availability of service, repairs or parts.

    Employs compensation methods that discourage or penalize sales people for selling the bait.

    Refuses to take orders for the bait.

    Refuses to make delivery of the bait within a reasonable time period.

    Shows you a broken or defective product.

    Fails to meet anticipated demand for the bait without disclosing the bait’s limited availability in the ad.

    Fails to stock all outlets with the bait in the quantity specified in the ad.

So let’s say you see an ad for Lawnmower A. You go to Pete’s Lawnmower Store and you tell Pete that you’d like Lawnmower A.

Pete says, “Great! Here’s Lawnmover A. Just so you know, Lawnmower A is only good for people who have very small lawns. You might like Lawnmover B better!”

You say, “Holy cow, Pete. Lawnmower B is awesome. Can I have a discount on Lawnmower B?”

Pete says, “Lawnmower B isn’t on sale, but I’ll throw in this shovel.”

You say, “Deal!”

Pete upsold you on a lawnmower/shovel bundle, but he did nothing wrong. The lawnmower was available at the advertised price.

Scenario 2:
You see an ad for Lawnmower A. You go to Pete’s Lawnmower Store and you tell Pete that you’d like Lawnmower A.

Pete says, “Great! Here’s Lawnmover A. Just so you know, Lawnmower A is only good for people who have very small lawns. You might like Lawnmover B better!”

You say, “No way, Pete. My yard is the size of Paris Hilton’s bra. I want Lawnmower A!”

Pete says, “Well, honestly, Lawnmower A sucks. We’re trying to clear them out, but you seem like a nice guy and I’d hate to sell you this piece of crap lawnmower. Last week, this lawnmower killed 5 children. You’d be better off with Lawnmower B.”

You say, “Gosh Pete. I don’t care for children anyway. Give me Lawnmower A.”

Pete says, “Ok, Lawnmower A will take 6 months to ship. It’s on backorder.”

You say, “I’ll have no grass in 6 months. Sell me the floor model.”

Pete says, “I can’t sell the floor model, or my boss Super Pete will make me pay $600.”

You say, “Ok, Pete. I’ll just take Lawnmower B.”

Pete says, “Here’s your free shovel!”

That was the bait and switch.—MEGHANN MARCO

Guides Against Bait Advertising [FTC]
(Photo: Clean Wal-Mart)

Comments

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  1. tozmervo says:

    If, in the second scenario, Pete had sold me Lawnmower B at a discount price (say, the same percentage off as Lawnmower A) would it still be considered bait and switch?

    I ask this because at Target (this was years ago, may not be the case anymore) it was common practice to substitute items for out of stock sale items at the same percentage off. This was a practice encouraged by Corporate and had its own function in the computers. Sometimes this was advantageous to the consumer: if a 15% off DS game was out of stock, the person could get any other DS game for 15% off. Other times it wasn’t – a TV substitution often meant subbing a more expensive TV.

    And yes, one of the rare times this happened I was accused of bait and switch.

  2. Toof_75_75 says:

    HAHA That’s a great story!! Well done Meghann!!

    Pete: “Last week, this lawnmower killed 5 children!”
    Consumer: “Seriously?!? I’ll take it! :-)”

    Bait and switch? No…he just upsold you on a lawnmower based on it’s superior abilities!

  3. elf6c says:

    See e.g. Best Buy.

  4. JRuiz47 says:

    @Toof_75_75:

    Okay, that made me laugh (along with the original post).

  5. mfergel says:

    Not bait and switch but shady…….Circuit City’s saying you can get a t-shirt, poster, (or other item) with the purchase of a specific CD or DVD. Why……….I went once asking for the t-shirt, they told me straight out they were out because they only had one to give……..what the f%*k. How they can get away advertising that as a selling point for an item is beyond me. I’ve seen this in the past as well with them typically having less than 10 items to even give away. The adds don’t even say that it is limited availability.

  6. nightbird says:

    Last year I decided to get a new computer. After shopping around a bit, I noticed a model A on sale at compusa (mistake right there, I know). So the husband and I go to compusa, and after waiting longer than it should have been for help, the salesguy says model A is sold out. This is on a Sunday, the first day of the sale, at 1 in the afternoon, on a non-holiday weekend. I complain to the manager, who tries to sell me model B and C, which come with coupons for the soon to be out Vista. He actually tells me that “Once Vista comes out, XP will be obsolete anyway.” I had to hold back the laughter.

    Needless to say, I didn’t buy a computer from them that day, or in the future….which isn’t a big deal as that location was one of those that were closed. Anyway, I felt that was a clear bait and switch experience.

  7. ptkdude says:

    “Last week, this lawnmower killed 5 children.”

    That reminds me of the volcano insurance salesman in Family Guy saying “my brother tells me a volcano may already be coming this way”

  8. Mary_Beth says:

    Simplest explanation of a “bait and switch” advertisement: an alluring but insincere offer to sell a product or service which the advertiser does not intend to sell.

    I conduct advertising review and this is actually one of the most difficult types of unethical advertising to find. It is not immediately apparent when looking at an ad; you have to go to the store to discover the problem. If you encounter this type of ad, you may want to consider notifying the local ad council or BBB ad review to let them know.

  9. Aeroracere says:

    “I’ve got some amazing tiger-repellant, would you like to buy some.”

    “Well, how do you know it works?”

    “See any tigers around?”

    “I’ll take it!”

  10. William Mize says:

    Wait. I’m confused. It Pete or The Random Consumer Formerly Known As Meghann coming over to cut my grass this weekend or not?

    Oh, and I don’t need any shoveling, so they can leave that at home.

  11. kamikasee says:

    I can see why the bait and switch is a Bad Thing, but what’s your recourse if you experience this? Should you demand a discount or some special consideration? Should you just report them to the authorities? If I were in a situation like this, I can’t imagine that I would do more than just choose not to buy, as nightbird above.

  12. Flynn says:

    Three words (assuming the AP stylebook has online as one word):

    Online camera sales

    Specifically, ones from little shops in Brooklyn. I dunno if it’s as bad as it used to be, but man, they seeded Froogle and Yahoo Shopping to show up as the low price but then try the ole’ bait & switch.

    I went to buy a camera from one of them a number of years ago. I was suspicious when they all made entering a phone number manditory. Then, I get the call like 5 minutes after I placed the order:

    Salesguy: “Hey, I see you ordered the Panasonic Lumix camera. Great camera, but the battery life sucks on it.”
    Me: “Yeah, well, I’ll check that out, and if I need to, I’ll buy another battery later.”
    Salesguy: “Seriously, it only works for like 3 pictures and it dies.”
    Me: “Um, I don’t really believe that. It may be underpowered, but I’d rather look into it. None of the reviews I read said it was that bad.”
    Salesguy: “Look, you really need a better battery, lemme tell you what we’ve got…”
    Me: “No, seriously, I don’t want another battery, just sell me the camera.”
    Salesguy: “I’d be doing you a disservice. I can’t let you buy this camera without another battery for it.”
    Me: “Ok, listen, if you don’t knock of the upsell, I’m gonna cancel this order.”
    Salesguy: “Fine, it’s canceled.” (click)

    He clearly had NO intention of selling me the camera at that price. It may not have been a “switch” in the sense that I wasn’t getting THAT CAMERA, but they sure as heck weren’t gonna do it without getting their margin on a marked up battery.

  13. IC18 says:

    @Flynn, I would’ve got his name and number and called him back and tried to buy the more expensive one, and then after an hour on the phone, asking every single detail about the camera, decide to cancel and hang up. That will really piss him off!

  14. magdelane says:

    I had an experience that taught me how to deal with a situation similar to a bait-and switch. many companies don’t even want to be accused of it, even if circumstances really are our of their control…
    (Yeah this ended up being a bit long of a comment, but here it goes.)

    Setting: one of the many Kohls in Saint Louis metro area

    magdelane: “Awesome! The Dyson DS14 Animal is on super sale. The vacuum is still expensive as all get out, but I’ve never seen them THIS cheap! Must buy it. Wait, the tag is here, but there are none on the shelf. I’ll ask the super-friendly always easy-to-find floor staff to check in the back for one.”
    (after wandering around the store for 10 minutes)
    magdelane: “I need you to check in the back for this advertised vacuum. It is the first day of the sale, so it should still be in stock, right?”
    Kohls Minion: “Er, no, we never got them in.”
    magdelane: “Then why is the sign out?”
    Kohls Minion: “go to the customer service desk and see if she will call around”
    (magdelane goes to customer service dept. and waits for 15 minutes before speaking with cranky Great Minion)
    magdelane: “ma’m, would you kindly inqure around to see where the Dyson DS 14 Animal vacuum–note the sale tag for said item, for which I hold in my palm–is in stock, so that I may purchase it?”
    Great Minion: ::gruntsand picks up phone::
    (Great Minion calls three stores, NONE have received their shipments)
    Great Minion: “Here’s a raincheck. We’re due to get some sort of truck in tonight. It is prolly in there.”
    magdelane: “uh, okay… Why wasn’t it here already?”
    Great Minion: ::shrugs::
    (magdelane leaves, taking the raincheck for the Dyson along with the sale tag from the empty shelf)
    Next day:
    magdelane (on phone to same Kohl’s):”Did they come in last night? I have a raincheck.”
    Kohls Minion: “Er, no. We didn’t have a truck come in. Who gave you the raincheck?”
    magdelane: “Cust service Great Minion”
    Kohls Minion: “Ohhhh… Um. We might not be getting them in for a while. Thanks.” (hangs up)
    magdelane: “Something stinks in mudville”
    (Saturday, at the same Kohls store, wandering to find any Minion)
    magdelane: “I need help with the vacuums.”
    Uber Minion: “of course I can help you! I’m Uber Minion!(manager!)
    magdelane: (Producing raincheck and shelf tag for on-sale Dyson) I want this vacuum. There are none in stock.
    Uber Minion: “Who gave you that? ::face falls:: I’ll go check in the back.” (skitters to storeroom and back in 2 minutes)
    Uber Minion: “We won’t be getting any of those in. You can see that there is a new model on the shelf in it’s place, DS17 Animal.”
    magdelane: “You advertised this in your flyer, website and even have a tag up on the shelf for it, of which I have procured a copy! I /will/ have my Over-engineered Dust Bunny Terrorizer!” (Holy chorus sings)
    Uber Minion: “But we won’t be getting any in. We dont’ carry them any more.”
    magdelane: “I have the Raincheck of Promises Broken! You will honor it! I will have satisfaction!”
    Uber Minion: “Uh, let me call corporate.” (skitters to the back again)
    Uber Minion: “We can honor the Raincheck of Promises Broken on the brand-new Overengineered Heavenly Filth Destroyer that took the place of the Dust Bunny Terrorizer. The price with tax would come to __0.00. The Regional Minion has approved it so!”

    End result: Took home an Overengineered Heavenly Filth Destroyer at much more than $200 off!
    My lungs thank the documentation and the retailer’s fear of being totally called on a bait and switch.

  15. G-Dog says:

    I’ve made the mistake of shopping at zipzoomfly.com two times (PC hardware site). Each time my order was initially processed with no indication of a problem. A day or so later, I would receive e-mails stating that the item I was buying was out of stock AND discontinued, even if it was a brand new model still featured on the manufacturers splash page.

    I would then be provided a handy dandy link to a more expensive model that I could buy immediately. Needless to say, I never took the bait.

  16. @Flynn: I guess this would technically count as an “upsell,” but it still smarts. I bought a camera from this incredibly upsell-eriffic place and got the same treatment. Needless to say, I said “no” to all the extras and ended up getting the camera for the actual advertised price of next to nothing. But that was a fluke; I could’ve been very, very unlucky.

    This isn’t to say, however, that I haven’t been tricked into the upsell before. Haven’t we all?

    As someone with an older parent who uses the Internet, this kind of stuff really pisses me off (both the upsells, generally, and the bait-and-switch). I know that there have always been snake-oil salesman who take advantage of people’s willingness to trust someone whom they consider to be an expert. It disgusts me that merchants would take advantage of consumers; the bottom line is, of course, money, but you’d hope that people wouldn’t suck nearly so much.

    After my experience — which, frankly, rattled the hell out of me — I began checking the BBB and ordering only from sites that I trusted (including this old standby, with which I’ve been a customer since 1996). I don’t know if commenters on Consumerist give this site enough credit sometimes: many of us may be paranoid, but Ben, Meghann, and the gang are providing a real public service: knowledge. I know that, over the past few months of reading and commenting on this site, I have made wiser decisions.

    Thanks, everyone.

  17. smileboot says:

    Ok what if you line up at a store for 18 hours and wait for the launch of a console. Only to find out that they are only selling 1 or 2 said consoles alone the rest are forecably being sold in bundles with say controllers and games or even TVs. Is this bait and switch?

  18. Ah'm Tha Sharaff says:

    I don’t see readers of this site ever getting sucked in by a bait and switch, except the loss of gas and time, of course.

  19. bastarre says:

    Size of Paris Hilton’s bra? Funniest thing I’ve read all week. Thanks.

  20. shekondar says:

    How about the travel websites…

    I was looking for airline tickets recently, and found a good price at a particular site – when I clicked the “Buy” button, it tells me that the low fare is no longer available. So, I go to another site, only to return to the first site a few minutes later. Guess what? The site shows that the low priced tickets are available again…so once again, I click “Buy”, only to have it once again tell me that the low-priced tickets are sold out and only the higher-priced ones are available…

  21. Channe says:

    Paris Hilton recently had a boob job. I still think that post was funny, I’m just sayin’…

    Nightbird, I had the exact same experience a few years ago at our local CompUsa — except the item in question was a 24″ Samsung LCD and I arrived exactly when the store opened. The monitor was in the ad and the salesman wanted to sell it to me, but the manager insisted they didn’t have any in stock, except for the floor model, so they tried to get me to buy a 24″ HP instead. The manager couldn’t or wouldn’t order me one because the ad said “limited availability, only ‘x’ number per store”. I asked to buy the floor model since there is no way this store could’ve sold out since I was the first customer of the day, but the manager refused to sell it. After going back and forth with the manager for over an hour, I asked for the corporate phone number. He told the salesguy to give it to me and stomped back to his office. I called CompUsa corporate on my cell from the store and gave them all of the details; the customer relations agent assured me that they would investigate and get back to me, so I left the store.

    The next day, the store manager called me, apologized profusely for the “limited availability”, and asked me to come down to the store: they had the monitor in stock. He sold me the monitor at the ad price and it was new and in the box. Where it magically came from, I don’t know and didn’t really care. Interestingly, that store is also on the closure list.

  22. LintMan says:

    @loquaciousmusic: It’s not really an upsell, because most of those sleazy camera stores have absolutely *zero* intention of selling you just the camera without their pricey extras. Most commonly, after rejecting the extras and arguing endlessly to still get the deal, you’re told it’s suddenly “out of stock”. (Or you find out they “lost” your order 3 weeks after they seemed to have accepted it.) Worst case, you buy the extras, they charge you for those and ship them, while you’re always told the camera itself is “on backorder”.

    The bait is the low advertised deal on just the camera, and the switch is the package price with all the extras. I’m guessing you were dealing with a slightly less unscrupulous dealer than the typical sleazy New York ones.

    @smileboot: It sounds like that would meet the bait and switch criteria listed above, but almost certainly for the big console releases those ads would have said “limited quantities available”, which lets them off the hook (though it’s still sleazy).

  23. formated4tv says:

    In response to the Circuit City promos running out (posters/cds/etc)…You have to remember that when the cool promo items come in, a lot of the associates grab them first. I’m sure the same thing happens at Best Buy or Target, but the only way that I trust a promo being around is when it’s bundled with the item itself, not something separate that’s handed out.

  24. asherchang says:

    Nice story- it really helped in illustrating the criteria lol :)

  25. Grrrrrrr, now with two buns made of bacon. says:

    So where do car dealers fit into all this? You know..the ones that always advertise the car you want at a ridiculously low price.(stock #21345 is priced $5000 below invoice!!).they give the stock number of the car, but when you go to the dealer, that car is never there or they say it has been sold. I hear this over and over again, and often times I wonder if that fanstastic car (stock #21345) ever existed. How could you go about making them prove that it did exist?

  26. suckonthat says:

    @shekondar: This happens to me ALL THE TIME with Orbitz! It makes me very very angry. If that price isn’t available, then why the hell does it persist on your site for 3 days?!

  27. alarmbottle says:

    @shekondar: yup I was buying tix today and the exact same thing happened. I deleted my cookies and did it one more time and luckily it went thru without charging me that weird $56 markup it said it would.

  28. Elle Rayne says:

    Wow, that makes it sound like people who fall for bait-and-switch are really dumb. :-) But it was funny.

  29. VaniaVitani says:

    An auto dealer 45 miles away told me they had the exact vehicle I was looking for: a used Chevy Colorado, black, Crew cab, 27,000 miles, $14,000 and that I should come in to talk about financing. When I got there, turns out the truck I came to see didn’t exist and they tried to sell me a 2009 Dodge Durango, then after that didn’t work, they condescended to try to sell me a 2009 Colorado. Is this a “bait and switch?”