(1) It
is an unfair or deceptive act for a seller to offer any product for sale when
the seller does not have the product in stock or readily available for sale in
sufficient quantities to meet reasonably anticipated demand at its retail
locations in the trade area covered by the advertisement.
(2) Notwithstanding the terms and provisions
of 940 CMR 6.06(1), it shall not be an unfair or deceptive act or practice to
offer any product for sale if the seller does not have the product in stock or
readily available for sale in sufficient quantities to meet reasonably
anticipated demand at its retail location in the trade area covered by the
advertisement when:
(a) The seller clearly
and conspicuously discloses in the advertisement all specific exceptions,
limitations or restrictions regarding the stores, products or prices applicable
to the advertised offer, and:
1. States the
minimum quantity of the product available in each store; or
2. States that the quantity is limited, if
that is the case.
(b)
The seller has acted in good faith by ordering the advertised product in
adequate time for delivery and in sufficient quantities to meet reasonably
anticipated demand and:
1. offers a comparable
product at a comparable savings, acceptable to the reasonable consumer and to
all prospective buyers unable to purchase the advertised product; or
2. provides a rain check to each prospective
buyer at the time of the attempted purchase, and the seller:
a. informs the consumer as to when the rain
check is reasonably expected to be honored, which date shall not be more than
60 days from the date of issuance of the rain check unless the seller discloses
in the advertisement that a longer period applies and specifically states the
length of such time period;
b.
discloses to the consumer at the time the rain check is issued that:
i. for a product advertised for $50 or more,
the seller will make reasonable efforts to notify the consumer when the rain
check item is available; or
ii. for
a product advertised for less than $50, the seller will not notify the consumer
when the rain check product is available, if that is the seller's policy;
and
c. allows the
consumer a reasonable redemption period to purchase the item; or
(c) The seller has
acted in good faith by ordering the advertised product in adequate time for
delivery and in sufficient quantity to satisfy reasonably anticipated consumer
demand. Notwithstanding anything contained herein, a seller shall be presumed
not to have acted in good faith if such seller has demonstrated a pattern or
practice of failure to have the product in stock in sufficient quantities to
satisfy reasonably anticipated consumer demand. The following shall serve as
guidelines in determining whether the seller has acted in good faith within the
meaning of 940 CMR 6.06(2)(c) when the seller does not have sufficient quantity
to satisfy reasonably anticipated consumer demand:
1. the insufficient delivery of the
advertised product to the seller is through no fault of the seller;
or
2. the product cannot be
reordered under the original terms and conditions and the seller did not know
or did not have reason to know that the product cannot be reordered;
or
3. the product could not, with
reasonable certainty, be delivered upon reordering in sufficient time to
satisfy consumer demand.
(3) In addition to the requirements of 940
CMR 6.06(1), a seller must also correct an advertisement as required by
940 CMR
6.13.
