When limited availability may become bait advertising and how stock, campaign reach, duration and switching to another product should be reviewed.
, Mag. Bernhard Brandauer, Rechtsanwalt
A heavily advertised product may sell out quickly. That does not automatically make the advertising unlawful. The campaign becomes legally sensitive where the business already had sufficient reason at publication to expect that it could not supply the product, or an equivalent product, for a reasonable period and in a reasonable quantity.
Item 5 of the Annex to the Austrian UWG treats such an invitation to purchase to consumers as bait advertising. Item 6 additionally addresses certain cases where the advertised product is not shown, cannot be ordered or is not delivered within a reasonable time in order to sell a different product instead.
Retailers and competitors therefore need to examine more than an empty stock figure. Planning, campaign reach, offer price, expected demand, replenishment, the ordering process and handling of substitutes must be documented for the particular campaign.
The provision requires an invitation to purchase at a specified price. This covers advertising that presents product and price with enough precision for consumers to make a commercial decision about the purchase. A general brand message without a particular offer raises different issues.
The blacklist does not depend only on the goods later being unavailable. The question is whether, at publication, the trader had sufficient reason to expect that it could not make the advertised product or an equivalent product available to a reasonable extent. The statutory wording expressly refers to the product, the scale of advertising and the offer price.
A small remaining stock promoted throughout Austria may therefore be assessed differently from the same quantity in a clearly limited local campaign. Conversely, unexpected demand does not by itself prove inadequate planning. The forecast, procurement and actual course of the campaign must be examined together.
The review path separates campaign approval, an active stock gap and observed competitor advertising. You can securely send the selected information to the firm after the assessment.
The claim, price, stock, duration, reach and actual ordering process belong in the same review.
This review path does not decide legality. It organises the facts needed for legal assessment.
Record the intended price, expected demand, advertised period, available quantity and secured replenishment. State the reach assumption behind the plan. Have qualifications and approval reviewed against the exact campaign.
Preserve when the shortage arose, open orders, delivery commitments and every advertising version. Assess whether advertising must stop or be clearly amended. A more expensive substitute should not appear to have been the original objective of the campaign.
Preserve the full advertisement showing price, period, channel and visible qualifications. Record a factual ordering attempt and the exact response. Campaign reach, expected demand and signs of steering customers to another product may also be relevant.
A reliable approval file connects planned inventory with expected campaign reach. It should include channel, territory, duration, audience, media budget, previous sales and the effect of the special price. The more strongly price and placement are intended to increase demand, the more important a documented quantity forecast becomes.
Equivalent products and secured replenishment may also matter. Mere hope of short term procurement is not documentation. Supplier commitment, quantity, timing and affected variants should be established before launch. Qualifications must appear where the commercial decision is prompted.
The advertising claims self-check helps organise audience, claim, evidence and publication status. For availability advertising, the approval file should also include stock data, reach assumptions and the escalation route.
Item 6 of the UWG Annex addresses a specific situation. After advertising at a stated price, the trader refuses to show the product, refuses orders, fails to deliver within a reasonable time or demonstrates a defective sample. There must also be an intention to sell another product instead.
A genuine offer of an equivalent substitute after an unexpected shortage is therefore not automatically the same practice. Risk increases where staff or shop logic systematically blocks the advertised item and directs customers to another, often more expensive, product.
Businesses should review sales scripts, shop logic, cancellation reasons and substitute offers. The actual ordering option must match the advertisement. Internal instructions not to sell the promoted product can be particularly important evidence.
A stock notice can explain the offer but does not replace reasonable planning. It must be clear, timely and visible with the particular offer. A remote note at the bottom of a page will not reliably correct an unrestricted headline.
If an unexpected shortage arises during the campaign, further delivery of ads, the product page, marketplace data and branch information should be updated consistently. Accepted orders, delivery promises and possible cancellations require separate contractual assessment.
Other verifiable claims have their own focus. The articles on market leadership claims and quality seals and certifications explain why evidence, scope and visible qualifications must be reviewed against each exact claim.
For an own campaign, preserve the approved version, stock forecast, supplier commitments, advertising plan, actual reach and sales. Add every amendment, stop instruction, customer communication and treatment of existing orders.
A competitor should preserve the full advertisement with date, URL, price, period and visible qualifications. A single “unavailable” screenshot does not establish the whole case. A factual ordering attempt, the offered alternative and repetition across channels may be relevant.
The canonical German article on the UWG blacklist places all automatically prohibited consumer practices in context. This article remains limited to bait advertising, availability and a planned switch to other goods.
No. A central question is whether the trader had sufficient reason at publication to expect that it could not supply the product or an equivalent product reasonably in light of the goods, advertising scale and price. Unexpected demand must be assessed against the actual planning.
No. The notice may explain the offer but does not replace plausible quantity planning. Visibility, reach, duration, price, stock and replenishment must be considered together.
A genuine substitute offer is not automatically prohibited. Item 6 concerns specified refusal or demonstration practices combined with an intention to sell a different product instead. The actual process, communication and original planning require individual assessment.
Organise the claim, audience, evidence and campaign status.
Assess the claim, evidence, repetition risk and possible protective objective.
The canonical German overview of automatically prohibited consumer practices.
The firm advises on advertising claims, injunctions and competition proceedings.
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