16 CFR Part 424 Retail Food Store Advertising and Marketing Practices Rule, Project No. P104203
I believe that the Unavailability Rule remains necessary, as store competition is insufficient to drive strict adherence to fully honoring sales of this nature. As a shopper who frequently makes purchases in the early morning -- before the hour in which most area stores staff their customer service counters -- I note that cashiers are consistently able to find someone to come to the counter so that I may obtain "rain checks" for out of stock sale items. I do not find such consistency in making other customer service requests, such as asking a store to credit a coupon that I forgot to use during the checkout process. Over the past few years, however, I have noticed a growing weakness in the Unavailability Rule that deserves address. This is in the area of meat sales in grocery stores that offer "big buy" (i.e., larger quantity) discounted packages of such items as porterhouse steaks, center cut pork loin chops, etc. There has been an increasing trend in area stores to package such items stacked partially atop each other in larger quantities (e.g., five steaks or nine chops), concealing the loin area of all but the topmost item. Frequently, this stacking serves to conceal the fact that many of the packages items do not meet the definition of the advertised item (e.g., "porterhouse" steaks that fail to even meet the USDA tenderloin size definition of a "T-bone", "loin chops" taken from the rib area, etc.). Again, competition does not appear to be an adequate driver in this area. The trend, in fact, has been for stores previously noted for packaging "big buy" items in a manner where the tops of each item are clearly visible to instead follow a competitor's lead and package items in this deceptive manner. Here, competition appears to be driving quality to match that of the lowest common denominator, rather than spurring consumer-friendly behavior. It is my hope that the FTC will continue the Unavailability Rule, and will seek to expand it to provide more honest compliance with "big buy" sale items.