You spot an advertisement in a store window for a set of speakers you’ve been eyeing — and see that they’re being sold for 50% of their full retail price. Eagerly, you go inside to make your purchase but are stopped by a sales associate who explains that, unfortunately, the last speaker was just sold. However, they have different speakers in stock that cost more but work better than the advertised speakers; would you like to see those instead?
What’s bait-and-switch advertising?
Bait-and-switch advertising occurs when a business promotes an incredible deal — that doesn’t actually exist. When would-be customers inquire after the deal, they are steered toward purchasing a more expensive product or service in its place. After being initially hooked by the promise of a great deal, and with their attention and purchasing interest already caught, many customers will move forward with the pricier product, not understanding that they’ve fallen victim to a bait-and-switch marketing scam.
Examples of bait-and-switch:
- “For a limited time only,” or “in limited supply”
A common example is when a car dealership promotes a special deal on a vehicle they claim to have in limited supply. When a consumer inquires after the deal, they’re told the last car at that price point was just sold. There are plenty of full-price vehicles still available to test drive, however!
- “Actual item not pictured”
This statement is commonly found as an asterisked disclaimer when the product pictured is different (read: superior to) the product actually being sold. The fine-print disclaimer technically saves this from being a case of false advertising, despite it clearly being a morally unethical practice.
- “Card subject to change”
This is often found on promotions used within professional wrestling. The event promoter will put out an advertisement picturing two well-known wrestlers; not noticing the ad’s “card subject to change” language, ticket holders who arrive to the event discover that the evening’s lineup is different from the one advertised.
- “All sales are final”
This language doesn’t automatically signal a scam, as there are plenty of legitimate situations in which it could be used. However, when guarding yourself against bait-and-switch scams, be especially mindful of agreeing to situations where refunds aren’t possible.
- “May include a resort fee”
In this case, a hotel will advertise their rooms at a much lower rate than they should actually cost — then append an additional sum onto that, calling it a “resort fee.” By not lumping in the fee with the advertised room rate up front, hotels are able to lure in customers with theoretical deals that ultimately wind up negated.
- “Available at select stores”
This is a popular tactic used by chain retailers. By tacking on this disclaimer and making a certain deal available at, say, two of 100 stores nationwide, the store technically avoids false advertising.
- “Low financing rates available”
This is especially common amongst car dealerships and appliance sellers. By promising that “almost everyone” is eligible for low financing rates, the seller is casting its widest consumer net possible with the knowledge that select few will ultimately qualify.
- “(Dream position) at (dream salary) is open”
Sellers of a traditional product aren’t the only ones who use bait-and-switch methods. Headhunters, for instance, may post an attractive job listing that may not exist or need to be filled. The resumes they collect may then be used for other means or in an attempt to fill less desirable or well-paid positions.
How bait-and-switch works
Bait-and-switch typically doesn’t entail selling faulty products to customers or practicing overtly false advertising, as there are clear legal protections in place for both. What bait-and-switch scammers focus on is the grey, in-between space, where confusing language, fine-print disclaimers, and technicalities lure in customers who will then be persuaded to purchase more expensive items. Below is how a theoretical bait-and-switch exchange would transpire:
1. The seller determines what is the minimum they can do to avoid outright false advertising.
Depending on the specific bait-and-scam tactic being used, this could entail choosing which couple stores out of a large handful, for instance, that will actually offer the advertised deal. Some scammers are able to successfully operate without taking even these basic precautions, choosing to rely instead on “we just sold the last one” as a cop-out.
2. You, the consumer, read or hear an advertisement for the seller’s “deal.”
The advertisement is almost guaranteed to include confusing and intentionally misleading language, including the red-flag phrases mentioned earlier.
3. You go to the seller to make your purchase.
This isn’t to say that bait-and-switch scams can’t happen online, but they’re most heavily utilized in brick-and-mortar spaces. This is because by the time you’re physically in a position to make a purchase, you’ve already made a special trip to the store and are more likely to be enticed into buying other times.
4. The seller explains why the deal is no longer available, or how it has changed.
Maybe the last item was just sold. Maybe they offer to backorder it for you — but with the condition that it will take multiple months to ship. Maybe the advertised product is available at the promoted cost, but you discover that something needed in order for that product to work is being sold separately and at a marked-up price (example: a $30 karaoke machine with microphones separately available for purchase at $30 a pop).
5. They try to sell you something else.
It wouldn’t be bait-and-switch without this final step. There are legitimate situations in which inventory of a product may run out; but in those circumstances, the seller should be apologetic and even offer a small perk as a remedy. They should not immediately jump into trying to sell you a different product that costs more than what you’d planned to spend originally.
What a bait-and-switch scam is not
Before leveling an accusation at seller of using bait-and-scam methods, you’ll want to make sure you’re completely clear on what this doesn’t constitute, as well.
1. It's a pricing error.
Sometimes, an error of this kind is just that — a mistake. Sometimes stores will honor the mistake and agree to sell you the product at the incorrectly advertised rate, but this isn’t always the case.
2. The supply truly was limited.
“Limited supply” does not automatically signal a scam, as there are plenty of legitimate cases in which this is true. Honest advertisers will clearly include this information in their promotions.
3. The deal had a specific time window that has passed.
If the advertisements expressly stated the sale would end at 5 p.m. on Tuesday, the seller isn’t trying to bait-and-scam you by telling you on Wednesday that you have to pay full price.
Is bait-and-switch legal?
In the United States, it is not legal to use bait-and-switch advertising methods, and perpetrators may be subject to lawsuits from consumers. Proving that bait-and-switch is happening as a consumer, however, can be tricky, and many sellers will take the minimum precautions needed (such as with “limited quantity” or “at select locations” language in an ad’s fineprint) to ensure they are legally immune from these accusations.
How can I identify a bait-and-switch scam?
Use the red flags and information included above as a guidepost, as well as your intuition. If you have the feeling you’re being scammed, refrain from making a purchase, and use time as a tool that works in your favor.
What should I do if someone bait-and-switches me?
A victim of bait-and-switch may be entitled to recover any losses incurred as a result of fraudulent advertising under the Lanham Act. But the victim must first be able to prove such a scam took place. As an example, if you visit a store that says their limited supply of a product has run out one week and you see them advertise the same product the following week, return to the store and ask after the product. Next, ask about the advertisement you saw. You may want to record the conversation; just make sure you’re familiar with your state’s recording laws beforehand.
When should I get legal services involved?
If you believe you’ve fallen for a bait-and-switch scam that has cost you enough to justify the time and financial cost of going to court, you will likely want to consult a business lawyer. If you haven’t personally fallen for a bait-and-switch scam but believe you know of one that is happening, these most likely aren’t ground enough to sue on; however, you could alert the Better Business Bureau.