Consumer Alert

Is it legal to advertise sale items that aren't in stock?

By Mitch Lipka
Globe Correspondent / May 24, 2009
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Q. Sears advertised a Tivoli Audio iSongBook for $49.99. I was the first person to enter the store in Peabody on the first day of the sale. No Tivolis. I was told a truck shipment was due Tuesday and to come back. At the same time, I tried to purchase one online and was told 10 were being delivered to the Tewksbury store. I had a friend go to Tewksbury and there were no Tivolis. I went back to my Sears - again, no Tivolis - and no idea when or if they were coming. Sears' online personal shopper service could not locate any. I returned to Sears on Thursday, hoping at least to get a rain check, and they wouldn't give me one.

Isn't it illegal for a company to advertise items on sale that they don't have in stock and have no ability to order?

Jodi Smith

A. When a product is advertised, particularly at a deeply discounted price, it would be good form to have the product available for purchase. Generally, the law requires such form.

But when the ad reads "while quantities last" as the Sears flier did, all bets are off. Good practice? No. Legal? Yes. Not only does it get Sears off the hook for not having the item in stock, it also allows them to deny rain checks. It's amazing what a disclaimer can do.

For its part, Sears made nice to the question writer, but didn't extend its goodwill beyond that.

"This situation was not a result of anything Ms. Smith did or didn't do," a Sears spokesman said. "While the ad for the Tivoli iSongbook indicated a sale price of $49.99 (discounted from $159.99), and stated 'while quantities last,' some of our stores sold out of the product before the ad was released. To resolve this situation for Ms. Smith, we located a Tivoli iSongbook at one of our stores in Cambridge, Mass., and have shipped it directly to her - for the advertised sale price of $49.99. Sears apologizes for the confusion and inconvenience caused to Ms. Smith."

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