Are your Black Friday terms ready for the rush?

Darcy MacMillan, Solicitor

Both Black Friday and Cyber Monday are right around the corner, perhaps the busiest retail weekend of the year. Most businesses are likely focused on preparing promotional campaigns to capture consumer attention and how they are looking to manage the surge in sales, but it is important not to forget the small print- their terms and conditions – to ensure compliance with regulators.

Both the Advertising Standards Authority (ASA) and the Competition Markets Authority (CMA) have issued guidance reminding businesses to be transparent, fair and evidence-based in their promotional activity around big sale events. A growing number of brands are publishing Black Friday specific terms and conditions to mitigate the legal and logistical risks.

So, what should you be including in your Black Friday terms and conditions, and what can be learnt from the major retailers?

1. Be clear about what is on offer

The ASA is clear that any significant terms and conditions (conditions which could affect whether someone chooses to participate in the offer or not e.g. discount percentage) should be made clear with the first piece of marketing material – not buried in the fine print. This means clearly setting out what is included in the promotion, when it starts and ends and any exclusions.

For example, a headline line “Up to 50% off everything” is unlikely to comply with these directions if only a handful of products are discounted at 50%. Businesses must be specific and use phrases such as “50% off selected lines.” Any claim made must be accurate.

Tip: State the promotion period, eligible products and the main exclusions in the same place as the main offer (never as a footnote or separate page)!

2. Manage customer expectations on delivery

Increased order volumes likely mean that extended delivery times are inevitable during the Black Friday period. Busineses need to make sure that this eventuality is set out clearly in their T&Cs on the website and at the point of checkout.

For example, retailers may highlight potential longer delivery times during their Black Friday and Christmas promotions, and adjust delivery estimates accordingly. The ASA encourages businesses to make realistic claims about delivery to avoid misleading consumers. Clear expectations also help to reduce customer complaints.

3. Clarify your returns and refunds policy

Consumers expect an extended return window for purchases made during the Black Friday- Christmas period. Major retailers are extending return policies offering returns into January, this can help with customer goodwill.

Businesses can introduce restrictions on returns- for example, excluding personalised items or hygiene products – as long as the terms are clear.

Tip: Any changes to a returns policy during this period must be made transparent before purchase and should remain compliant with the Consumer Rights Act 2015, which provide consumers with at least a 14- day cooling off period for most online sales.

4. Be accurate with discounts and price comparisons

The CMA expects that language such as “was/now” and “up to X% off” claims reflect genuine, verifiable savings. The “was” price should be the usual selling price for a meaningful period before the sale, not an inflated short-term price designed to exaggerate a discount.

The CMA also warns against misleading urgency claims such as “only two left” or “offer ends in two hours” when those statements are inaccurate or routinely extended.

Tip: Keep a record of pricing history, sales volumes, and the time periods during which higher prices were charged. The evidence can help in the event pricing practices are challenged.

5. Address stock limitations and availability

Businesses should avoid using vague statements such as “subject to availability” and “while stocks last” to manage demand and supply risks. If certain items are excluded or available in small numbers this needs to be communicated to the consumer.

The ASA will consider whether a business made a reasonable estimate of demand and whether consumers were misleading about availability.

Final Thoughts

Black Friday and Cyber Monday are significant dates in the retail calendar, offering businesses with great opportunities to increase sale revenue and brand visibility, but it is important to not get swept up with the rush without first ensuring that any terms and promotions are compliant.

Our Commercial team can advise you on shaping your terms and conditions to gear up for promotional events such as Black Friday and one-off sales and discounts. If you would like tailored advice ahead of your next promotion, please get in touch with our team at info@kuits.com.

Contributor: Imogen Unwin, Trainee Solicitor