Do retailers have to give a rain check if advertised items are not available?

Dear Consumer Ed:

Are businesses required to offer a “rain check” for items advertised but not available within the time frame of the deal? I understand when they say “while supplies last,” but one store in particular either conveniently runs out of a product early (sometimes the first day) or it tries to switch to either a higher-priced product or a lower-quality product.

A: It depends on what kind of business it is. The Federal Trade Commission (“FTC”) requires grocery stores and retailers that sell food products to have the advertised product in stock and available for you to buy during the entire time period of the deal unless the advertisement clearly states that supplies of the product are limited. If the grocery store doesn’t have a phrase on the ad to the effect of “while supplies last”, but runs out of the advertised product, the store must either be able to prove that it originally ordered enough of the advertised item to meet the anticipated demand, or:

• Offer you a rain check;
• Offer you a similar product to the one that was advertised that is either comparable in value or has had its price reduced in a similar way; or
• Offer you some other form of compensation that is equal to the value of the advertised product that is no longer stock.

If you do receive a rain check from your grocery store, make sure that it includes the following:

• Store’s name and address
• Your name, address, and phone number
• Date the rain check was issued to you
• Description of the item you wanted to purchase
• Quantity you are entitled to purchase
• Advertised price

Once you have the rain check, the store has to provide you with the product within 60 days. Otherwise, it must allow you to purchase another comparable in-stock item, or work with you to establish when it will have the advertised product ready for you to buy. If the grocery store’s ad didn’t state that quantities of the advertised item were limited, and you’ve asked them to provide you with a rain check or a comparable product but they refused, the store has engaged in a deceptive or unfair practice, and has violated the Federal Trade Commission Act.

If the business you are concerned about is not a grocery store or another kind of retailer that sells food products, the business is only required to clearly state in its advertisement that the quantities of the product are limited. The business has no obligation to provide you with a rain check or with a comparable product, even if the advertisement does not state that supplies are limited. However, the lack of availability of the advertised product without a disclaimer could be violation of Georgia’s Fair Business Practices Act (“FBPA”), especially if the business tries to pressure you to buy a more expensive product (or if it purposely stocked only two or three units of the merchandise advertised simply to get customers into the store to sell them something else). According to the FBPA, it is unfair or deceptive if a store advertises goods without intending to sell them or to provide reasonable amounts of the advertised products without providing notice that supplies are limited. The FTC also prohibits businesses from advertising items solely for the purpose of convincing you to buy more expensive ones.

You can report any of the violations described above to the FTC at www.ftc.gov and to the Georgia Department of Law’s Consumer Protection Unit at consumer.ga.gov or 404-651-8600.

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