Research
What a bona fide offer to sell requires
Federal guides treat an advertised offer the advertiser does not actually want to fill as a distinct problem, separate from whether anything in the ad was false. The test they set is about what happens after the reader arrives.
The short answer
The Federal Trade Commission maintains a set of guides addressed to advertisers, titled Guides Against Bait Advertising. They define bait 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.
The guides state that 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. They add that the primary aim of a bait advertisement is to obtain leads as to persons interested in buying merchandise of the type so advertised.
The operative sentence is one line long. No advertisement containing an offer to sell a product should be published when the offer is not a bona fide effort to sell the advertised product.
That is a rule about intention rather than accuracy. An advertisement can contain no false statement at all and still fail this test, because the question is whether the seller meant to fill the order.
Why a lead-generation offer is treated separately
Most advertising rules ask whether a claim is true and whether the seller can prove it. This one asks a different question, and the guides say so in their opening definition: the aim of a bait advertisement is to obtain leads.
That framing matters in a market where the advertised item and the item eventually sold are frequently not the same thing. A landing page that surfaces a low headline figure, collects contact details, and then routes the reader to a different product at a different price is the exact sequence the guides describe. Whether any particular page is doing that is a question about that page, and it is not one this site answers for any seller.
The guides also define their own scope broadly. A footnote states that for the purpose of this part, advertising includes any form of public notice however disseminated or utilized. That wording does not carve out a website, a social post or an email.
The initial offer, and a rule that survives the correction
The guides address the first impression an advertisement creates. No statement or illustration should be used in any advertisement which creates a false impression of the grade, quality, make, value, currency of model, size, color, usability, or origin of the product offered.
The same sentence reaches anything that may otherwise misrepresent the product in such a manner that later, on disclosure of the true facts, the purchaser may be switched from the advertised product to another.
Then comes the sentence that does the most work. Even though the true facts are subsequently made known to the buyer, the law is violated if the first contact or interview is secured by deception.
That is the part readers usually get backwards. Correcting the record at checkout does not cure a misleading first impression under this guide. The guide treats the moment of first contact as the moment that counts, which is why the terms page is not where this test is passed or failed.
Six acts the guides list as evidence against a bona fide offer
The guides do not leave the phrase bona fide offer as an abstraction. They list acts that will be considered in determining whether an advertisement is one, under the heading of discouraging purchase of the advertised merchandise.
The first is the refusal to show, demonstrate, or sell the product offered in accordance with the terms of the offer. The second is disparagement by acts or words of the advertised product, or disparagement of its guarantee, credit terms, availability of service, repairs or parts, or any other respect connected with it.
The third is the failure to have available at all outlets listed in the advertisement a sufficient quantity of the advertised product to meet reasonably anticipated demands, unless the advertisement clearly and adequately discloses that supply is limited or that the merchandise is available only at designated outlets.
The fourth is the refusal to take orders for the advertised merchandise to be delivered within a reasonable period of time. The fifth is showing or demonstrating a product which is defective, unusable or impractical for the purpose represented or implied in the advertisement.
The sixth is structural rather than transactional: use of a sales plan or method of compensation for salesmen, or penalizing salesmen, designed to prevent or discourage them from selling the advertised product.
Read together, these describe a pattern rather than a single act. Each item is something a reader can sometimes observe from outside, and several of them are visible before any money changes hands.
The switch that happens after the sale
A separate section addresses what the guides call switch after sale. No practice should be pursued by an advertiser, in the event of sale of the advertised product, of unselling with the intent and purpose of selling other merchandise in its stead.
Four acts are listed as relevant to whether the initial sale was in good faith rather than a strategem to sell other merchandise.
Accepting a deposit for the advertised product, then switching the purchaser to a higher-priced product. Failure to make delivery of the advertised product within a reasonable time or to make a refund. Disparagement by acts or words of the advertised product or its guarantee, credit terms or availability of service. And delivery of a product which is defective, unusable or impractical for the purpose represented or implied in the advertisement.
The second of those overlaps with an entirely different set of rules about shipping deadlines and refunds, which run on their own clocks. The overlap is worth knowing about because a single sequence of events can be described by more than one federal rule at once, and the rules do not share a remedy.
What these guides are, and what they are not
Part 238 is a set of guides, and its own authority note cites sections 5 and 6 of the Federal Trade Commission Act. Guides state the Commission's view of what the underlying prohibition on unfair or deceptive acts or practices requires. They are written in the language of should rather than shall, which is a real difference in form.
The practical consequence for a reader is narrow and worth stating plainly. These guides describe what an advertiser is expected to do. They do not hand a reader a remedy, they do not decide any individual dispute, and nothing here tells anyone that a particular experience amounts to a violation.
What they are useful for is vocabulary. They give a name and a structure to a pattern that is otherwise hard to describe: an offer that was never meant to be filled, followed by a different offer that was.
For a comparison site the practical use is narrower still. An advertised configuration that cannot be ordered as advertised is a checkable fact, and it is checkable before payment rather than after.
Key takeaways
- The guides define bait advertising as an alluring but insincere offer the advertiser does not intend or want to sell.
- They state the primary aim of such an advertisement is to obtain leads rather than to make the advertised sale.
- Correcting the record later does not cure it: the guides say the violation occurs if first contact was secured by deception.
- Six listed acts count as evidence against a bona fide offer, including refusing to sell on the advertised terms.
- Stock shortfalls are addressed with an express exception for a clear and adequate disclosure that supply is limited.
- These are guides addressed to advertisers under the Federal Trade Commission Act, not a remedy handed to a buyer.
Frequently asked questions
What is bait advertising under the federal guides?
The guides define it as an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell. They describe its purpose as switching consumers from the advertised merchandise in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser, and state that the primary aim is to obtain leads as to persons interested in buying merchandise of that type.
Does correcting a misleading advertisement at checkout fix the problem?
Not under these guides. They state that even though the true facts are subsequently made known to the buyer, the law is violated if the first contact or interview is secured by deception. The moment the guide measures is first contact, not the moment of payment. A disclosure buried further down the funnel does not, on the face of the guide, undo a first impression that was misleading.
Is running out of an advertised item a violation?
The guides list failure to have available at all outlets listed in the advertisement a sufficient quantity of the advertised product to meet reasonably anticipated demands among the acts considered in determining whether an offer was bona fide. They attach an express exception: unless the advertisement clearly and adequately discloses that supply is limited, or that the merchandise is available only at designated outlets. So the disclosure, not the stock level alone, is what the guide turns on.
Do these guides apply to a website?
The guides define their own reach in a footnote, stating that for the purpose of this part advertising includes any form of public notice however disseminated or utilized. That language is not limited to print or broadcast and does not carve out any medium. The guides were issued in 1967, and their text has not been narrowed to exclude later channels.
Do the guides give a buyer a remedy?
They are guides addressed to advertisers, written in the language of what an advertiser should and should not do, and their authority note cites the Federal Trade Commission Act. They describe the Commission's view of what the general prohibition on unfair or deceptive practices requires. They do not decide individual disputes and this article does not say that any particular experience amounts to a violation.
How is this different from the rules on crossed-out prices?
Different Part, different claim. The deceptive pricing guides ask whether a stated former price or comparison price is true of the seller's own history or of the market. These guides ask whether the seller meant to sell the advertised item at all. An advertisement can survive one test and fail the other, because they measure different things.
Sources
Each document below is named as it names itself, with the date printed on that document rather than the day it was read.
- Title 16 Code of Federal Regulations Part 238, Guides Against Bait Advertising, read in full — the definition at 238.0 with its footnote on the meaning of advertising, the bona fide offer requirement at 238.1, the initial offer and first contact rule at 238.2, the six listed acts at 238.3, and the switch after sale provisions at 238.4; Source note 32 FR 15540, Nov. 8, 1967 — Electronic Code of Federal Regulations, Office of the Federal Register, September 2026