NH Law About... Bait and Switch

Introduction to... Bait and Switch

Updated March 24, 2017

Definition from Nolo’s Plain-English Law Dictionary  

A dishonest sales practice in which a business advertises a bargain price for an item in order to draw customers in and then tells the prospective buyer that the advertised item is of poor quality or no longer available and attempts to switch the customer to a more expensive product. In most states this practice is a crime and can also be the basis for a personal lawsuit if damages can be proved. http://www.law.cornell.edu/wex/bait_and_switch

Researching this topic may require looking at state and federal law. The New Hampshire Consumer Protection Act (RSA 358-A) and the Federal Trade Commission Act (15 U.S.C. §§ 45), the federal law which served as the model for our state law, generally prohibit the use of any unfair or deceptive act or practice (UDAP) or any unfair method of competition in trade or commerce in New Hampshire. 

Specifically, one of the things the New Hampshire Consumer Protection Act prohibits under RSA 358-A:2 IX is the "advertising of goods or services with intent not to sell them as advertised." This covers what are commonly called "bait and switch" tactics. The Federal Trade Commission (FTC) defines bait and switch advertising as: "an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser. The primary aim of a bait advertisement is to obtain leads as to persons interested in buying merchandise of the type so advertised."  The federal regulations, listed below, give this as well as a few other simple definitions of prohibited activities regarding bait and switch tactics. 

There are several good print resources to research this topic. In A Practical Guide to Understanding RSA 358-A in New Hampshire section 2.3.3 provides a good general discussion of the New Hampshire Consumer Protection Act, including a discussion of types of unfair or deceptive acts covered by the statute although it doesn't specifically discuss the concept of “bait and switch”. Unfair and Deceptive Acts and Practices from the National Consumer Law Center does cover “bait and switch” or “false advertising” in section 5.3. Section 5.3.1 provides some helpful discussion relevant to the types of unfair or deceptive acts covered by the New Hampshire statute. Finally, the New Hampshire Practice series volume, Real Estate has a brief discussion in section 2.04 on bait and switch in the real estate context. (The links below lead to libraries that own these titles.)

Statutes

Although the phrase "bait and switch" is a commonly used term, it isn't found in either the text of RSA 358-A or in the print index to the statutes. Look for “unfair or deceptive practices” or "consumer protection" instead. Also, although RSA 358-A is referred to as the "New Hampshire Consumer Protection Act" that isn't the actual name of the statute. The real title of RSA 358-A is "Regulation of Business Practices for Consumer Protection." A keyword search on "consumer protection act" in the Revised Statutes Online will turn up several results, but not the consumer protection act itself. 

Cases

There are hundreds of cases that have dealt with RSA 358-A. We've included two cases as examples but a good option for finding relevant cases is to use the Read about … sources and the print version of the statutes which has cross-references to cases.

Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ...  is not a substitute for the services of an attorney. 


Read about... Bait and Switch

WEBSITES

New Hampshire. Dept. of Justice. Consumer Sourcebook. Advertising

Link verified on: March 24, 2017

"Both federal and New Hampshire laws prohibit advertising that may be misinterpreted by the average consumer."   GO>

New Hampshire. Dept. of Justice. Consumer Complaint Form  GO>

Link verified on: March 24, 2017

New Hampshire Legal Aid. Consumer Protection in New Hampshire

Link verified on: March 24, 2017

This website has two guides: Protection from Unfair or Deceptive Business Practices which discusses what an "unfair or deceptive" business practice is and how to file a complaint and Consumer Financial Products & Services which talks about enforcement of federal laws regulating banks, loans, credit cards, and debt collectors among other topics.   GO>


PRINT

A Practical Guide to Understanding RSA 358-A in New Hampshire/ by Michael A. Delaney and Kenneth E. Rubenstein, eds. Boston, Mass.: Massachusetts Continuing Legal Education, 2014.  GO>

Link verified on: March 24, 2017

Unfair and deceptive acts and practices. Boston, MA : National Consumer Law Center, [2016]. 9th ed.   GO>

Link verified on: March 24, 2017

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Read the law about... Bait and Switch

NEW HAMPSHIRE STATUTES

RSA 358-A. Regulation of Business Practices for Consumer Protection  GO>

Link verified on: May 23, 2017

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: June 26, 2017

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE CASES

122 N.H. 600 (1982). Chase v. Dorais

Link verified on: March 24, 2017

"In this case of first impression, we determine the breadth of the consumer protection act, RSA ch. 358-A (Supp. 1981), in New Hampshire."   GO>

143 N.H. 576 (1999). Hughes v. DiSalvo

Link verified on: March 24, 2017

Remedies under the Consumer Protection Act are not available where the transaction is strictly private in nature, and is in no way undertaken in the ordinary course of a trade or business. Similarly, isolated sales of property by an owner are not subject to the Consumer Protection Act. The purpose of the Act is to ensure an equitable relationship between consumers and persons engaged in business. We decline to hold homeowners, such as the plaintiff, who personally sell their homes either directly or through lease and sales arrangements, liable under the Consumer Protection Act.   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: June 26, 2017

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

FEDERAL STATUTES

15 U.S.C. 45. Unfair methods of competition unlawful; prevention by Commission  GO>

Link verified on: March 24, 2017


FEDERAL REGULATIONS

16 CFR pt. 238. Guides against Bait Advertising  GO>

Link verified on: March 24, 2017


FOR MORE HELP ...

4 Wm. & Mary Bus. L. Rev. 575 (2013). David Adam Friedman, Explaining "Bait-and-Switch" Regulation  GO>

Link verified on: March 24, 2017

Federal Trade Commission Advertising FAQ's: A Guide for Small Business  GO>

Link verified on: March 24, 2017

FTC Policy Statement Regarding Advertising Substantiation  GO>

Link verified on: March 24, 2017

New Hampshire Law Library

Link verified on: June 26, 2017

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>


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