CHOICE membership

Promo Ts & Cs


#1

I’m having a bit of a Facebook spat with Coles and it sparked a question that I wanted to check out.

Coles have really messed up their mini-Coles promo this time round and have missed the toys from two online orders because of low stock. This really annoys me because I’ve been shopping at Woolies recently (after they gave me a 3 month free delivery pass) and I only shopped at Coles to get the min-Coles (my kids love them).

Coles customer service tell me that they will make a best endeavour to supply the mini-Coles but that they are not obliged to do so because the offer Ts & Cs say “Coles accepts no liability if Collectables and merchandise become unavailable.” I wanted to know whether this offer term has legal standing under Australian Consumer Law. What do people think?

To be honest, I’m not so bothered about a few missing plastic toys. I’d really like to understand in general what my rights are in these sort of cases. It is particularly important in relation to cashback offers. For example, I recently spent $250 with Virgin Wines because of an AmEx cashback deal (spend $150 with Virgin Wines and get $50 back). Virgin were late in dispatching and I nearly missed the cashback. what would my rights be in this case?

Of course, you’d hope that the retailer would abide by the offer anyway. Frankly I think Coles are shooting themselves in the foot by deploying their Ts & Cs. I am, however, interested to know what my right are.


#2

Hi @samwardill - without having read the Coles Ts&Cs it’s hard to say what they have promised consumers, but typically with these kinds of offers they cover themselves with “while stocks last” or similar terminology. “Coles accepts no liability if Collectables and merchandise become unavailable" would probably cover them in instances where they run out. It’s a shame to miss out, and I can understand the annoyance!

It’s difficult to talk about hypotheticals (for example with the Virgin Wines), but if you do have a consumer issue that you need resolved, check out the resources available on the ACCC website: https://www.accc.gov.au/consumers/consumer-rights-guarantees - this provides some useful guidance on making complaints too.


#3

@LindaPrzhedetsky The Coles minis Ts & Cs are here https://coleslittleshop.com.au/terms. “While Stocks Last” is usually used by retailers when they make an offer. In this case a retailer generally would not accept the offer if they are unable to supply (or they would give the consumer the right to withdraw if the promo was out of stock). For example, if Coles were selling a pack size with 25% extra free “While Stocks Last” and you bought that pack size then, if they ran out of the 25% extra promo pack size, they could not substitute the regular pack size without 25% extra free unless you agreed to accept this. Similarly they can’t decide to not supply the promo gift just because they’ve run out of it (they only exhausted supply in store - they still haven’t exhausted stock across the country).


#4

It is difficult as the Coles minis are gifts with a purchase rather than something which was purchased. I suspect that this is why the T&Cs state, as you outlined above…

2.6 Collectables and merchandise only available during the Campaign Period or while stocks last. Coles accepts no liability if Collectables and merchandise become unavailable.

If they run out of stocks, it is likely that Coles will make more to satisfy a (small) number of customers which may have missed out due to stock either running out or becoming unavailable.

A potential solution since it is unlikely that Coles online will provide Coles minis if they have run out/are unavailable, would be to take your order and email stating that they are unavailable to a Coles supermarket and see if they are willing to provide the Coles mini to you.

Without reading the specific conditions of the Virgin Wine offer, usually these offers are based on the date of the purchase and not the date of dispatch. So, if Virgin held off dispatching for a few days, the offer should still be honoured.

Where difficulties could lie is if Virgin Wines held off the processing of the order until after the offer period expired. This would be challenging and I would expect that it could be a ‘nightmare’ determining who may be responsible.


#5

@phb It is often the case that gifts are offered with goods to incentivise purchase of the gift. the retailer may often try to deny liability in the event of issues supplying the gift. Just because their Ts & Cs suggest this, it doesn’t mean that this term is enforceable. See this link (which I recognise is based on UK law but I think is applicable here) https://www.cripps.co.uk/free-isnt-always-risk-free/


#6

I am not familiar with the UK law, but as @LindaPrzhedetsky has indicated, in Australia purchases come under the Australian Consumer Law.

I would expect that Coles will estimate the demand for the special production of the Coles mini, so that they don’t create even more unnecessary waste from those promotion items which are left over after the promotion period.

Reasonable terms and conditions can be enforced in Australia. Going to Coles (either instore or online) to make a purchase in the promotion period means that one agrees to the conditions subject of that purchase. The only way to try and avoid the Coles T&Cs, such as that for the Coles minis, is to provide Coles a copy of your own T&Cs and ask them to agree to them before making a purchase. I suspect I know what Coles reaction would be in the case of an individual shopper.

If one thinks the T&Cs are unfair, the ACCC also has information on this:

As the ACCC outlines, a court is the only way to determine of the T&Cs are unfair. To take such to court would be very expensive, unless one has a particaulr point to prove and has unlimited resources.

If one does not agree to Coles T&Cs, one has the choice to either take a punt hoping that the Coles minis will be provided or not to shop at Coles (removing any opportunity to obtain the Coles minis).

I suggest that you visit your local Coles as outlined above to see if they can assist, especially if Coles Online has run out of promotional materials. Coles Online may be waiting until the end of the promotion period to see if any Coles mini are returned so that they can be forwarded to customers like yourself who missed out during the promotion period. I wouldn’t be holding my breath though.

For products which say may run out within a promotion period (say a product is heavily discounted, many of the major retailers also use rain checks which I have seen specified in the promotion T&Cs. Rainchecks being a coupon issued to a customer by a shop, guaranteeing that a sale item which is out of stock may be purchased by that customer at a later date at the same reduced price.


#7

I also suppose the T&Cs are similar to say an airline releasing 100 seats at a heavily discounted price during a nominated promotion period. When the seats are sold, there are no more to offer and a customer don’t demand that other seats are sold at the same price. If this was the case, businesses would no longer discount or have promotions as they would be held to a lower promotion price.

Like Coles minis, when Coles runs out, the consumer can’t really demand that Coles provide special arrangements outside the promotion T&Cs to meet the requirements of a specific customer.


#8

@phb I think you are missing the implications of an online order. Coles are still supplying the other goods but not the promotional goods that they promised to supply with the other goods. In the airline example the customer just doesn’t make the purchase unless they are happy to get the product without the promised promotion


#9

They didn’t promise. The delivery of the items are subject to the T&Cs, which indicate they may not be delivered, if they run out or they become unavailable. If one had purchased the Coles mini items (which is not the case as they are free an dependent on total grocery purchase amount), then one could request a refund for amount paid for the goods/Coles mini which were not delivered.


#10

Choice has some good advice on unfair contract terms. See https://www.choice.com.au/shopping/consumer-rights-and-advice/your-rights/buying-guides/unfair-contracts . “A term that allows a business to wiggle out of its obligations under a contract whenever it likes and without any penalty” is regarded as unfair. Coles can’t offer free mini Coles then give themselves the right to supply goods without the mini-Coles at their discretion.


#11

If this is correct and is confirmed by a court, it would set a significant precedence which impact on the whole of the retail and service industry. As outlined above, it would result in the practice of selling restricted availability items (such as those by airlines, travel agencies, accommodation providers, retailer such as for Boxing Day or end of model sales sales) to cease as they would not be able to guarantee the unlimited provision of the service/products. All these type of promotions have supply or availability limitations similar to that nominated by Coles for its minis. The only difference being as one may have potentially purchased the products and services with hard cold cash and be able to get a refund, the Coles minis are ‘gifts’ as part of the Coles mini promotion and have no dollar value. Possibly if a value was to be placed on them, Coles could refund the couple of cents it would cost to manufacture the Coles minis?

Some other examples of similar T&Cs,

Woolworths Popouts:

From Wednesday 14 November 2018 until Tuesday 11 December 2018 (inclusive) or while stocks last.

Hyundai Offers:

Offers are valid while stocks last and exclude govt, fleet and rental buyers.

Qantas Flight Sales:

Fares may not be available on all flights or days.


#12

@phb I think you are still missing the point. In all the other examples you quote (other than Woolworths pop-outs) the retailer does not attempt to supply the goods ordered online without the promotional item that was promised at the time of order creation.


#13

The supply of promotional items seems little different than any promotion that is stated to be limited to ‘while stocks last’, the first X callers who would know if they were eligible when they call, or as the Vic PV rebate program is defined, the first (approx) 24,000 claims.

In the former 2 cases one can test if stock is available or if they are one of the X callers and thus eligible and make their choice to buy or not, but in the latter case you buy blind and submit a claim and may or may not receive your ‘reward’ depending on the (blind to you) takeup to date.

It would have been good form if Coles advised no more toys, but. Reality is their best efforts should deliver your toys since they are available in my local Coles, but committing they absolutely positively will takes the T&C (and their liability to do so) to another level that few businesses would cross.


#14

I can’t find where the website or through doing a dummy purchase that it ‘promises’ the supply of the Coles Mini items. The website indicates however that the Coles mini items are subject to the terms and conditions on the website.

These T&Cs also state:

The award of a Collectable is subject to stock availability and is at the sole discretion of Coles.

I believe thinking that Coles has promised the supply of the Coles Mini is not correct and it fits into the category of other items (either direct for sale or as a gift as part of a promotion) where these terms and conditions make it clear that stock/offer is limited and subject to availability. When they have sold out or have run out, they will no longer be available and provided by the retailer.

As indicated above, if Coles is challenged as outlined on the ACCC website for unfair conditions and it was proved to be successful, it would have significant ramifications for the whole of the goods and services industry as similar conditions are used in sales/product/service promotions.

I agree with @TheBBG, that it would have been good for Coles to advise that the Coles mini were no longer available on Coles Online…but it possibly aso be recognised that there will also be a lag between when they do run out and when the website has been updated to reflect such.

As I also indicated above, if the online store has run out of the Coles minis, try your local Coles supermarket. It is possible they will know of the online store running out of the minis and will be sympathetic to your plight.


#15

I’ve made a submission to the ACCC as follows: “As you may be aware, Coles have a mini-collectibles promotion. One mini-collectible is promised for each $30 spent. These mini-collectible have been selling for $5 each so this is a valuable promotion. Coles have been struggling to supply the promised mini-collectibles with my online orders. They have suggested that the promotion is subject to availability under the terms and conditions and therefore they have suggested that they are not obliged to supply the promotional items. I believe that, if they can’t supply the promotional items for an online order, they should advise the customer in advance and give the customer the opportunity to cancel the order. The customer is placing the order on the basis that they will receive the valuable promotional items. As the items are worth $5 each this is equivalent to a 17% discount. Coles terms and conditions to not give them the right to supply the goods without the promotional items because the promotional items are out of stock at the local store. Conversation with Coles is attached.” Let’s see what they say. Will post back.


#16

Interesting take. From my receipt

image

and considering you understand the T&C and thus ‘rules of engagement’ I am curious how you determined Coles promised you toys. Further you claim

but there is no suggestion. It is clearly stated that is fact.

That is a valid opinion but opinions have no standing legally. FWIW that some are asking $5 does not make their value $5. If you can document the common after-market selling (not asking!) price on ebay or similar is $5, it could be taken as $5. Since many of the toys are cardboard their actual value seems more like $0.50 although collectable markets do what they do re establishing value.

I am at a loss how you can connect the dots as you have done considering the T&C are both well published as well as consistent. I look forward to seeing the ACCC’s formal reply.


#17

Coles are still bound by the Competition and Consumer Act. What phb fails to understand is that terms and conditions of a business don’t override the ACL. You can quote t&c till the cows come home, doesn’t make them enforceable.

So while the terms and conditions are fairly clear cut in favour of Coles, they could still potentially breach the Act. I couldn’t see you successfully arguing that they promised you a mini. However;

The most likely breach would be misleading deceptive conduct, if Coles were knowingly promoting the minis when they knew or ought to have known they could not meet demand.

The object of the promotion is to drive customers to shop at Coles and not their competitor. It affects customers shopping habits and you can’t just dismiss it as inconsequential.

Remedies is where you fall down, as the “loss” you suffered is not really quantifiable. This issue is the sort of thing the ACCC would need to seek a penalty over as a prosecution. Not really an individual thing.


#18

This all sounds very complicated.

For any give away promotion associated with a product or brand there are always T&C’s.

For major incentives EG “cash backs” they have qualifying dates. Others seam to have references to state lotteries legislation. The first 100 callers promotions might be a little less transparent.

Some of us may see the Coles promotion as an assured offer of supply? That seems to be a common view here.
Others might see the promotion as “shop at Coles, and take a chance on being rewarded with collectables”?

How we see, hear or read the Coles marketing material seems very relevant to this discussion. :thinking:

In Coles defence:
Are they able to demonstrate the volume of plastic lures, sorry incentives they purchased is very large/reasonable?
Was a reasonable quantity of product distributed to all stores at the start of the fishing trip, sorry, I meant to suggest promotion?
Isn’t the true value of the minis as collectables also partly in their limited edition status. IE rarity. :money_mouth_face:

Limited Editions are a long time common marketing practice going back centuries.


#19

I understand the role of legislation over individual agreements/contracts (unless the legislation specifically allows such to prevail).As explained above, the only real action would be to demonstrate that the Cole’s T&Cs for the promotion were unfair as outlined on the ACCC website. If they are proven to be unfair, then this would have enormous ramification for the whole of the retail industry as products sold under a promotion will generally have similar limitations in their T&Cs.

The T&Cs in this case are about protecting Coles interests and not necessarily meeting the expectation of the customer, especially when the customer agreed to a purchase without fully understanding the T&Cs of the sale transaction.

As outlined in other threads, if one doesn’t agree to the T&Cs of sale nominated by the retailer there are a number of options, these include not shopping at the retailer one disagrees with the T&Cs (as there is no obligation to shop there, however shopping at the retailer means one accepts the T&Cs), provide the retailer with T&Cs which one thinks is fair prior to making any purchase from the retailer to have ones own T&Cs endorsed/approved (it is highly unlikely that a retailer will agree to such T&Cs for an individual shopper) or take action as unfair as outlined on the ACCC website.

One can’t start complaining about a retailer’s T&Cs after a purchase has been made, especially when the complaint relates to things which conflict with these T&Cs. Coles has every right to point to its T&Cs in relation to not providing the promotional material, providing the reasons concur with the T&Cs…which in this example appear to be the case.


#20

@phb One can’t start complaining about a retailer’s T&Cs after a purchase has been made

Of course they can. People only complain if they have a grievance. If people were not permitted to complain about Ts & Cs after a purchase they no-one would police unfair Ts & Cs.