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Black Friday - our six top tips for brands to avoid problems

With Black Friday on 29 November set to be the busiest it has ever been it is important to ensure that any advertisements promoting your Black Friday sales are clear and transparent and that your promotions will not fall foul of consumer protection law.

Here are our six top tips to ensure you stay in the black and do not end up in the red with the authorities and regulator.

1. Do not make false promotions in relation to either the price calculation of a product or the existence of a specific price advantage.

Make sure you can provide, if requested, evidence demonstrating that consumers are able to achieve a meaningful saving. The use of reference pricing, such as ‘was’ price, can highlight the savings a consumer can make and will usually  demonstrate a genuine established usual selling price and show that consumers have not been misled.

2. Do not artificially inflate prices prior to a sale period simply to present a savings claim.

Although prices used as a basis for comparison should generally have been the most recent price available and should be the stated reference price for at least 12 months immediately prior to the offer, any quoted RRP should not differ significantly from the price at which the product is generally sold.

3. Do not offer products for purchase at a specific price if you do not believe that it will be possible to supply reasonable quantities at that price.

What is reasonable? The Advertising Standard Authorities (‘ASA’) has advised that a reasonable estimate of the expected demand should be ascertained before the commencement of your Black Friday promotion and this should inform the expected supply required. Assessing sales figures of similar previous promotions can be a helpful starting point. If during the promotion it becomes apparent the demand cannot be met, be aware that there are a number of additional responsibilities that will need to be considered.

4. Do not forget to set out clearly any conditions and exclusions which apply to any advertisements promoting the sale offers.

The ASA has advised that the terms and conditions of the promotion should reference the products to which they refer and should be easily identifiable by consumers.

5. Do not falsely claim that a product will only be available on particular terms or only for a limited time (e.g. Black Friday only) if it will not.

Recent rulings by the ASA have indicated that the use of false countdown clocks on online websites in an attempt to elicit a purchase by customers more quickly will be treated as misleading if the time period for sale is not truly limited.

6. Do not mislead the public as to the overall presentation of the promotion.

When using “from” or “up to” to advertise a saving ensure that a significant proportion of the sale items included in the range of products are discounted at the maximum saving and that these claims represent the true overall picture of the price promotion.

And finally be aware if you are distance selling into the US - nearly all US states can now tax foreign online sellers!