In an earlier Law-Now article, we commented that a complaint had been made against Tesco to Trading Standards on the basis of unfair trading practices and that an ASA complaint was likely. A complaint was in fact made to the ASA and in the decision on the complaint released on Wednesday 8 May 2009, the ASA found in favour of Tesco.

The Consumer Protection from Unfair Trading Regulations 2008 were introduced into UK law last year to implement the Unfair Commercial Practices Directive.

On 6 January 2009, The Independent reported that Trading Standards officers were investigating complaints that Tesco was engaging in "bait advertising" in breach of the Regulations.

"Bait advertising" describes the practice of retailers advertising goods for which they expect to have insufficient stock. It is one of the banned practices defined as "always unfair" under the Regulations.

As part of a promotion, Tesco advertised litre bottles of Baileys at £8 each. Rosie Cooper, the MP for West Lancashire, attempted to purchase the product at three different stores. It was out of stock in each store. She complained to Trading Standards and to the ASA.

Trading Standards do not automatically publish the results of their investigations, and as yet have released no information on the outcome. However, the ASA has rejected Ms Cooper's challenge as to the availability of the product.

The ASA based its decision on data submitted by Tesco. The figures provided demonstrated that Tesco had arranged for a similar amount of stock as in a recent Baileys promotion, where Tesco stated that demand had been overestimated. In addition, Tesco had estimated that there would be greater sales than for the three previous offers, despite this promotion being shorter, and Tesco had factored in an extra 33.3% stock on top. Finally, 75% of stores had stock available at the end of the promotion. The ASA therefore concluded that Tesco had proved it had taken reasonable steps to ensure that it had sufficient stock to meet projected sales.

In the event that Trading Standards decide to publish the results of their investigation, it will be interesting to see whether they reach the same conclusions as the ASA.

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The original publication date for this article was 08/05/2009.