Unfair Commercial Practices Directive, Annex I, 5.

A supermarket chain that offers a significant discount on products, breaches the prohibition of bait advertising when the quantity of products available in each supermarket is not sufficient to meet the reasonably expected demand. This will even be the case when:

(1) the trader had announced in its advertising that the promotional actions were only valid on the day of the promotion and until stocks were exhausted; or 

(2) some of its supermarkets had a surplus of the discounted products, because the consumer cannot be expected to visit other establishments in order to find the discounted product.

The defendant is the Belgian branch of an international supermarket chain, and has approximately 300 supermarkets on Belgian territory.

On a weekly basis, the defendant circulates its national advertising brochure in which products are offered at highly reduced prices. Further, advertisements of the defendant are often found in various national and regional newspapers. In addition, the defendant offers its brochures in each of its supermarkets.

In each of these advertisements, the defendant stated that the promotional actions were only valid on the day of the promotion as indicated in the advertisement, and that the offer was valid only until stocks were exhausted.

During a certain period of time, the Belgian Ministry of Economy received numerous complaints of consumers stating that the defendant did not offer a sufficient amount of the advertised products. In some cases, supermarkets simply did not offer the products on the announced day, while others were out of stock only a few hours after opening. The Belgian authorities conducted an investigation and came to the same conclusion.

Does a trader breach the prohibition on bait advertising, when it offers only limited quantities of a certain product that is reduced in price, although it specifically announces in its advertisements that the promotional actions are only valid on the day of the promotion, and that the offer is valid only until stocks are exhausted?

The court first emphasized that, due to the wide range of the promotional campaign of defendant (brochures, newspapers, etc.), each Belgian household in the surroundings of a local supermarket of defendant was addressed by these advertisements.

The court then gave an overview of the complaints of consumers, and the findings of the Belgian authorities, from which it clearly appeared that in a large number of cases, local supermarkets of defendant did not (or did not sufficiently) provide the promotional products. The court concluded that it was proven that the advertised products were not supplied in reasonable quantities, having regard to the scale of advertising (i.e. constituting bait advertising).

The court rejected the plea of the defendant that the promotional actions were only valid on the day of the promotion and until stocks were exhausted. The court did not accept such a general statement, as it was clear that, in many cases, there was either no stock or that these products were supplied in very limited quantities.

The defendant had argued that, whilst some local supermarkets indeed lacked sufficient stock, others had a surplus of the products. In the defendant's view, consumers could easily go to these other supermarkets than their local one to obtain the advertised products. The court also rejected this argument. It held that each consumer may expect that its local supermarket making similar advertisements will have sufficient stock of these products. According to the court, the defendant cannot impose upon the consumer the obligation to comb all supermarkets, until he/she has found one with a sufficient supply of the products.

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Defendant was found to have breached the provision prohibiting bait advertising.

The court imposed a fine of EUR 27.500 for the violation of this criminally sanctioned provision.