Good commercial practices applicable to the pricing policy for Black Friday

A new Black Friday and price war campaign begins and it is important to note that it will be the first in which the new regulations for the transposition of European Union directives will be applied, on different matters and, among them, in defense of consumers and users.

Royal Decree-Law 7/2021, of April 27, came into force on January 1 and modifies Royal Legislative Decree 1/2007, of November 16, which approves the consolidated text of the General Law for the Defense of Consumers and Users.

The objective of said regulatory provision is none other than to advance greater protection of consumer rights and the end of the so-called planned obsolescence of products of a durable nature.

The developments in consumer regulations will have a direct impact on the operations of the manufacturers of the products reviewed and the companies dedicated to retail sales in their relationship with consumers and users, with a new definition of the scope of the regulation being especially significant. legal guarantee of said products, so important to highlight at a time of high demand like Black Friday.

It is important, therefore, that companies exercise caution when drafting the terms and conditions of sale, and that they review the advertising associated with each item.

On this occasion we will not stop at the guarantee system, which is provided for by the aforementioned regulations in defense of the rights of consumers and users, but rather at the pricing policy and other issues associated with them that companies must define in advertising campaigns. sales, among others, on Black Friday.

At a regulatory level, the conditions of sale and their impact on the final price of the products, during the sales period, are perfectly defined both in the aforementioned legislative provision and in those that are applicable in each autonomous community and that, in essence, They are based on the same principles and legal foundations.

What are good commercial practices in pricing policy for Black Friday?

In general, commercial practices that include information about the characteristics of the good or service and its price, allowing the consumer or user to make a decision about the contract, and whenever it cannot be clearly deduced from the context, must contain, among other things, :

• a) The full final price, including taxes.
• b) The breakdown, if applicable, of the amount of the increases or discounts that result from application to the offer and the additional expenses that are passed on to the consumer and user for accessory services, financing, use of different means of payment or other similar payment conditions. .

In particular, with regard to campaigns such as Black Friday, good practices in terms of pricing policy focus on:

• a) Determine the discounted price together with the original price and/or the percentage of the discount, specifying taxes and, if applicable, shipping costs in the case of online purchase of products.
• b) Clearly establish whether the discount applies while stocks last, in which case, the number of said stocks must be specifically reported.
• c) Special payment conditions cannot be applied that are not required during other purchase periods other than the sales period.

What consequences can arise from a pricing policy on Black Friday that fails to comply with applicable regulations?

Failure to comply with the applicable regulations implies the commission of an infraction that entails the imposition of the corresponding sanctions that will be of greater or lesser significance depending on the type of infraction committed and its scope.

In the event that the violations that we will list below are committed during the Black Friday campaign, they must be reported to the consumer inspectorate so that the corresponding sanctioning procedure can be initiated.

In this sense, we must take into account non-compliance with current regulations on consumption and unfair competition:

a) Violations in matters of consumption will be subject to the corresponding administrative sanctions, prior investigation of the appropriate file, without prejudice to the civil, criminal or other responsibilities that may correspond.

A pricing policy that fails to comply with the provisions of the applicable consumer regulations implies the commission of an infraction thereof, motivated by non-compliance with the price regulatory standards, the unjustified imposition of conditions on unsolicited services or minimum quantities or any other type of intervention or illegal action that results in an increase in prices or commercial margins.

The use of unfair commercial practices with consumers or users is also articulated as an infringement.

In both cases, these are minor infractions, unless they can be classified as serious or very serious if any of the following circumstances occur:

1. Have been carried out taking advantage of situations of need for certain goods, products or services of ordinary and widespread use or consumption, as well as giving rise to the same situation.
2. Having been carried out by exploiting the special inferiority, subordination or defenselessness of certain consumers or groups of them.
3. Committed with total failure to comply with the duties imposed or with a regularity, duration or other qualitative or quantitative circumstances that imply manifest contempt for the public interests protected by this Law.
4. Produce a serious social alteration, unjustified and foreseeable at the time of commission, causing alarm or mistrust in consumers or users or having an unfavorable impact on an economic sector.
5. Be carried out taking advantage of the situation of predominance of the offender in a market sector.
6. Being a repeat offender is responsible for the commission of any crimes or infractions harmful to the interests of consumers or users under the conditions and deadlines provided for in the applicable regulations.

As far as sanctions are concerned, their imposition must guarantee, in any circumstance, that the commission of an infraction is not more beneficial for the offending party than non-compliance with the violated rules.

The sanctions provided for in the regulatory body cited at the beginning are of different nature and scope, but if we focus on those of an economic nature, we must take into account that minor infractions can be punished with a fine of between €150 and €10,000, serious ones. between €10,001 and €100,000 and very serious cases between €100,001 and €1,000,000.

b) Associated with the above, we must comply with the provisions of Law 3/1991, of January 10, on unfair competition. Said regulatory text provides that any behavior that is objectively contrary to the requirements of good faith will be considered disloyal.

In relations with consumers and users, the behavior of a businessman or professional contrary to professional diligence, understood as the level of competence and special care that can be expected of a businessman in accordance with current practices, will be understood to be contrary to the requirements of good faith. honest market practices, which distorts or is likely to significantly distort the economic behavior of the average consumer or the average member of the target group of the practice, if it is a commercial practice directed at a specific group of consumers.

In terms of prices, it is foreseen that the setting of prices is free, unless otherwise provided by laws or regulations, although the sale carried out at low cost, or low acquisition price, will be considered unfair in the following cases:

• a) When it is likely to mislead consumers about the price level of other products or services of the same establishment.
• b) When it has the effect of discrediting the image of a foreign product or establishment.
• c) When it is part of a strategy aimed at eliminating a competitor or group of competitors from the market.

Likewise, it is considered unfair because it is misleading:

• a) Make a commercial offer of goods or services at a certain price without revealing the existence of reasonable reasons that make the businessman or professional think that said goods or services or other equivalents will not be available at the price offered for a sufficient period and in reasonable quantities, having take into account the type of good or service, the scope of the advertising that has been given and the price in question.
• b) Make a commercial offer of goods or services at a certain price and then, with the intention of promoting a different good or service, refuse to show the good or service offered, not accept orders or requests for supply, refuse to supply it within a period of reasonable time, show a defective sample of the promoted good or service or discredit it.

Be that as it may, what is clear is that, regardless of the applicable sanction, the greatest of them is the reputational damage that can be caused by a pricing policy that fails to comply with the regulations and that both harms the interests of consumers and users and that may be anti-competitive.

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Mónica Muñoz 

Lawyer expert in Consumer Law