Stephen Sidkin, partner at Fox Williams LLP, has the last word on Black Friday.

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“Black Friday is here.  The geese are getting fat”.

As a variant of the old nursery rhyme, this does not quite work.  But there is no denying the increasing importance of Black Friday to retail.  

Many retailers feel that they cannot risk losing their share of a finite spend by consumers by holding out and not engaging in a promotion.  Indeed, a perception exists that it is easier to delay going on sale in the final run up to Christmas, than to miss out on Black Friday.  

Whilst recently attention has focussed on the coming into force of much of the Consumer Rights Act, it is an earlier legislation – the Consumer Protection from Unfair Trading Regulations 2008 – which applies to Black Friday promotions.  

The starting point for the Regulations is that they prohibit misleading actions by a retailer.  If:

  1. A retailer makes a promotion which is false as to (a) the price or the manner in which the price is calculated or (b) the existence of a specific price advantage; or
  2. The overall presentation of the promotion deceives or is likely to deceive the average consumer as to (a) or (b) above,

then an offence will have been committed by the retailer if it causes or is likely to cause the average consumer to make a purchase the consumer would not have made otherwise.  Where the retailer is a company, its directors may also be prosecuted.  

The Regulations also highlight key practices which are always considered unfair (and so are illegal).  These include:

  • Offering products for purchase at a specified price when the retailer believes that it will not be possible to supply reasonable quantities at that price; and
  • Falsely claiming that a product would only be available on particular terms for a very limited time in order to elicit an immediate decision to purchase by a consumer.  

But irrespective of the Regulations, Black Friday also matters to landlords, brands, and other suppliers.  This is because Black Friday promotions can serve as an early bellwether of which retailers are planning to trade through Christmas before going into administration.  

“Please do put a penny in the old man’s hat”.