Availability of Advertised Products

(1) It is an unfair or deceptive act for a seller to offer any product for sale when the seller does not have the product in stock or readily available for sale in sufficient quantities to meet reasonably anticipated demand at its retail locations in the trade area covered by the advertisement. (2) Notwithstanding the terms and provisions of 940 CMR 6.06(1), it shall not be an unfair or deceptive act or practice to offer any product for sale if the seller does not have the product in stock or readily available for sale in sufficient quantities to meet reasonably anticipated demand at its retail location in the trade area covered by the advertisement when: (a) The seller clearly and conspicuously discloses in the advertisement all specific exceptions, limitations or restrictions regarding the stores, products or prices applicable to the advertised offer, and: 1. States the minimum quantity of the product available in each store; or 2. States that the quantity is limited, if that is the case. (b) The seller has acted in good faith by ordering the advertised product in adequate time for delivery and in sufficient quantities to meet reasonably anticipated demand and: 1. offers a comparable product at a comparable savings, acceptable to the reasonable consumer and to all prospective buyers unable to purchase the advertised product; or 2. provides a rain check to each prospective buyer at the time of the attempted purchase, and the seller: a. informs the consumer as to when the rain check is reasonably expected to be honored, which date shall not be more than 60 days from the date of issuance of the rain check unless the seller discloses in the advertisement that a longer period applies and specifically states the length of such time period; b. discloses to the consumer at the time the rain check is issued that: i. for a product advertised for $50 or more, the seller will make reasonable efforts to notify the consumer when the rain check item is available; or ii. for a product advertised for less than $50, the seller will not notify the consumer when the rain check product is available, if that is the seller's policy; and c. allows the consumer a reasonable redemption period to purchase the item; or (c) The seller has acted in good faith by ordering the advertised product in adequate time for delivery and in sufficient quantity to satisfy reasonably anticipated consumer demand. Notwithstanding anything contained in 940 CMR 6.06, a seller shall be presumed not to have acted in good faith if such seller has demonstrated a pattern or practice of failure to have the product in stock in sufficient quantities to satisfy reasonably anticipated consumer demand. The following shall serve as guidelines in determining whether the seller has acted in good faith within the meaning of 940 CMR 6.06(2)(c) when the seller does not have sufficient quantity to satisfy reasonably anticipated consumer demand: 1. the insufficient delivery of the advertised product to the seller is through no fault of the seller; or 2. the product cannot be reordered under the original terms and conditions and the seller did not know or did not have reason to know that the product cannot be reordered; or 3. the product could not, with reasonable certainty, be delivered upon reordering in sufficient time to satisfy consumer demand. (3) In addition to the requirements of 940 CMR 6.06(1), a seller must also correct an advertisement as required by 940 CMR 6.13.