All About Advertising Law wishes all of its retailers and consumer product company readers a profitable holiday shopping season.  As we ourselves enjoy some quality time with our families (as well as empty our wallets to show how much they mean to us) we wanted to share some tips for maximizing your holiday sales while keeping out of the regulatory and customer complaint fray.

We began thinking about clear and conspicuous disclosures on Thanksgiving Day.  We kid you not.  When visiting a beloved brother and his large brood of daughters we were welcomed to their home with an invitation to visit the art studio of my third- and first-grade nieces, a place where they create their masterpieces and have now decided to profit on their endeavors.  Why give away quality art for the refrigerator when you can sell it?  This generation is learning early.  Tiptoeing into the world of greed, avarice and profit, my nieces decided to offer a doorbuster opening sale.

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Clearly these children have some advertising lawyer DNA as we were quite impressed with the quality and clarity of the offer and its limitations. The offer (B1G2F) was clearly presented.  A qualification that the free items were to be the two of lesser value was explained clearly and simply and while presented in the form of a smaller type disclaimer, it was detailed near to the claim it modified in typeface that was clearly legible and contrasted with the white background of the sale flyer.  They presented the same offer on an iPad propped on the display table and the disclaimer was presented on the same screen as the main claim – no scrolling required.  Bravo little entrepreneurs.

As my son was busy emptying my wallet to take advantage of this too good to be true offer, we offer some additional thoughts all retailers should consider:

  1. Are there any limitations to the offer such as start and end dates or number of free items a single customer can receive?  All should be clearly disclosed so customers know when they will need to take advantage of the deal.  Some states affirmatively require the posting of end sale dates.  While you do not want to overwhelm your customers with provisos, if there are any material limitations to your offer, you want to spell these out clearly and conspicuously.
  2. Do you have a refund policy and is it posted?  Some states require this and if there is no posting will infer a liberal cash-based return policy.
  3. Do you have a compliance plan for the mail order rule to make sure you are shipping within 30 days or if not, advising customers of delays and giving them the opportunity to cancel the order?
  4. Do you have a sale compliance plan?  Some states actively enforce their sales pricing laws and limit the amount of time a retailer can call out a sale.  The FTC’s Free Guides say a good should not be offered as free for more than 6 out of 12 months.
  5. Are you checking to make sure your posted prices match the prices charged?  This can be a chaotic time of year with prices changing rapidly.  Many states have active Weights and Measures pricing surveillance year round but particularly over the holidays to ensure scanner accuracy and will penalize retailers where there are too many discrepancies.
  6. Do you make available any  warranties for your customers to review prior to sale in accordance with the FTC’s Pre-Sale Availability Rule? The FTC just sent many online retailers a reminder letter so this is an area the FTC is checking too.