While many sellers will apply selling tactics similar or nearly identical to those behind bait and switch fraud, ultimately, there is a clear distinction that must be made between practices that appear to be bait and switch and those which actually are considered so by law, at least in order to successfully bring bait and switch fraud charges against a particular seller.

 

 

The idea behind bait and switch is awfully widespread in its use, which makes the differentiation of actual fraud all that much harder: advertise a product at a low price to draw consumers in- the "bait"- and then, once the consumers come into an establishment looking for that specific advertised product, claim that it is not available or do not even attempt to sell it at all, and instead, suggest another more expensive and "better" product- the "switch."

 

 

This act of deception on behalf of a seller occurs constantly in within the consumer-driven world of retail, but for proper legal action to be taken, there must be proof that the fraud was completely intentional and part of a greater selling scheme.

 

 

For instance, if a seller does not have access to "bait" at the advertised low-price but nonetheless continues to advertise it and push the sale of another more expensive item, bait and switch is legally considered fraud, and depending on consumer protection laws of a state, legal action can be taken without question.

 

 

Similarly, if a customer goes into a store looking for an specially advertised product, but the product is said to be "out of stock" by an employee who wants to sell another more expensive chair, the tactic is only considered bait and switch fraud if there is absolutely no mention of limited quantities in the advertisement and no mail-orders or shipments are made available to a customer.

 

 

On the other hand, if there is a clear mention of such limitations, if an item has the potential of being shipped at the advertised price, if a person voluntary is "upsold" to a more costly product, or basically, if a seller does not lie in any way about the details of an advertised product, the bait and switch tactic can be applied without being considered an act of fraud. The cause of action, in the simplest sense, is based in the capability of an establishment selling the "bait" as advertised, regardless of how aggressive their "upselling" is.

 

Although many states may have their own set of consumer protection laws establishing the exact grounds of what is legally considered bait and switch fraud and what is not, under the U.S. Federal Trade Commission, the selling ploy of a particular establishment is liable of facing legal action against bait and switch fraud if:

 

 

The advertised product is not shown or sold in agreement with the offer's precise terms

 

 

The advertised product displayed is defective or impractical for the purposed implied in the advertisement.

 

 

The advertised product is strongly criticized or lied about- either regarding the product's guarantee, credit terms, production value, service and repair availability, etc- in hopes of "upselling" to another "better" product.

 

 

The stock of the advertised product was not sufficiently met in the listed outlets, unless the product advertisement clearly states limited availability in a limited number of stores, or if the stock of the product was deliberately lied about.

 

 

A seller refuses to take orders for the advertised product to be shipped within a reasonable time frame, unless the advertisement clearly states that it is solely an in-store offer.

 

 

A specific sales plan prohibits or penalizes employees for selling the advertised product instead of "upselling".

 

 

In addition to potentially being sued by customers, sellers which exercise such bait and switch fraud schemes can also have trademark infringement charges brought against them by other manufacturers or retailers.

Definition of Bait and Switch 

 

 

Although bait and switch advertising schemes may not always seem immediately obvious, chances are that the majority of consumers have been- or will be- lured into stores by such ploys at some point in life. In many ways, bait and switch as a selling mechanism is a staple of any consumer-driven society, but what many buyers are unaware of is that the tactic, under certain circumstances, is prohibited against by law.

 

 

While bait and switch is usually a phrase used to describe the general idea of luring consumers into a store based on advertisements of low-priced products (the bait) only to have those products either unavailable, or, to simply disregard the products altogether in hopes of selling more costly products (the switch), for the gimmick to be considered illegal, specific proof must be provided of the seller's deliberate intent to defraud.

 

 

In most bait and switch scenarios, a retail establishment will advertise a special "unbelievable!" sale of a product in order to first and foremost get buyers into that establishment; this is ultimately the first success of the seller. Once the buyers are actually in the store, a variety of reasons may be given as to why the product is no longer a feasible buying option, but instead, sellers will try and get those buyers to purchase a "better" and more expensive product.

 

 

In theory, because of the disappointment which results on behalf of that product unavailability, the consumer will be more apt to buy a substitute, or, for that matter, anything. It is with this latter notion that the sellers have undoubtedly won, particularly because the advertised product may not have been available to begin with.

 

 

Legality of Bait and Switch   

 

 

Just because a retailer attempts to upsell products by luring consumers in with an exceptionally low (and typically, very limited) sale price does not necessarily make that establishment guilty of fraud by any means, though.

 

 

For the bait and switch practice- often specifically called bait advertisement- to be considered true to "false advertising," and consequently, for a particular seller or manufacturer to have fraud charges brought against the greater company, there must be first, an advertisement which proves that the terms of the advertised sale did not comply with the actual product sale, and second, proof that the seller has showed "no intent or want" to sell the advertised product.

 

 

Although consumer protection laws may vary from state to state, the Federal Trade Commission, or FTC, highlights the main bait and switch selling tactics which are punishable as fraud. In the most basic sense, such tactics revolve around the notion that sellers may not dismiss the sale of an advertised product for one of greater value unless a range of bait and switch advertisement regulations are met.

 

 

Bait and switch tactics are primarily noted for their use within the retail field, but that does not mean that the idea behind the practice is not applied to other fields, like politics. In fact, the relationship between advertisement and politics should make the notion of political bait and switch one to be expected. While bait and switch ploys can essentially be translated onto many political fields, the most common political adaptation of the phrase relates to "caption bills."

 

 

What such bills aim to do, essentially, is to raise support (the "bait")for a particular bill passage- in general, the bill in question is usually fairly broad in nature, as to allow for further and more specific elaboration later- and then, once the bill gains momentum and gets passed, the most important details are relayed into writing (the "switch"), often changing the idea behind the bill drastically- ones which could have resulted in a denied passage of the bill to begin with.