Deceptive Pricing and Evidence Behind Black Friday Discounts

Fake discounts can arise when a seller briefly raises a price to advertise a reduction back to its usual level. Recurring sales deserve review when the higher price no longer reflects recent pricing.

The FTC's Guides Against Deceptive Pricing, 16 CFR Part 233, explain the agency's interpretation of deceptive price comparisons under federal law. They are guidance, rather than a standalone trade regulation rule. Section 233.1 looks for a genuine former price openly offered in the recent, regular course of business for a reasonably substantial period. It does not establish a universal 30-day test for ordinary former-price comparisons.

New York General Business Law §350 separately prohibits false advertising, while §349 addresses unfair, deceptive, or abusive practices. These state laws provide separate grounds for reviewing the offer. Advertising compliance also covers campaign claims beyond pricing.

Identify whether “regularly” or “compare at” refers to the seller's former price, a manufacturer's suggested retail price (MSRP), or another retailer's price. Each comparison requires different supporting records.

A manufacturer's price list alone may not establish genuine market savings. For MSRP comparisons, examine whether substantial sales occur at that price in the relevant market.

Build a timeline for the same SKU, size, model, condition, and sales channel. Include the reference price, its effective dates, earlier promotions, and the advertised sale period. Match bundles and product versions before calculating savings.

A former price is not automatically fictitious because nobody bought at that price. Section 233.1 distinguishes a genuine asking price from an artificial figure introduced to manufacture savings. Evidence of an active, good-faith offer can matter even without completed sales.

“Formerly sold at” makes a stronger claim: substantial sales must actually have occurred at that price. Review quantities, dates, and coupon-adjusted transaction prices before using that wording.

Retain dated emails, product pages, mobile displays, cart screens, and linked conditions. Preserve original files and metadata alongside screenshots showing the placement and legibility of terms.

Campaign approvals and platform settings can explain differences between an approved offer and the version customers saw. Include both in an advertising and promotions review.

Compare the promoted price with the amount required to complete the purchase. Identify mandatory charges, optional additions, shipping conditions, and membership or coupon requirements. Review when each condition appeared and whether the headline suggested broader eligibility.

Separate mandatory purchase charges from fees triggered by a return. A disclosed restocking fee does not establish that the original discount was genuine. Its application requires a separate review of the return terms.

Check whether a countdown actually ends the offer or simply restarts. Repeated extensions may undermine the impression that customers must act before a genuine deadline.

For “up to” savings, identify products available at the maximum reduction and review how the ad presents exclusions. Inventory and campaign records should support the overall impression of the offer.

Under New York General Business Law §218-a, covered retailers must conspicuously disclose refund conditions, including restocking fees and their dollar or percentage amounts. Online notice or a policy hyperlink must appear at a location the statute permits, such as near the item or before billing information is requested.

Retrieve the policy in effect when the customer purchased. Compare the stated calculation basis with the actual deduction, and establish whether the return involved buyer preference, a defect, or an incorrect shipment. Advance disclosure does not override applicable warranty or statutory rights.

A §218-a violation can give the buyer a right to a cash refund or credit, at the buyer's option, for up to 30 days after purchase. The statute conditions this remedy on purchase verification and merchandise not used or damaged by the buyer.

Prepare an explanation linking the offer, amount paid, return reason, purchase-date policy, and refund calculation. Identify whether any percentage deduction uses the amount actually paid or another stated basis. Preserve existing versions before changing a page or policy. A later correction cannot establish what an earlier buyer saw.

If a demand letter or agency inquiry arrives, identify its response requirements and preserve relevant records. Advertising litigation review can then assess the challenged statements and applicable claims using the actual campaign and transaction evidence.