Promotional Gift with Purchase issues

Of course they can if the term is unlawful.

No. As I said, the are other actions available such as misleading deceptive conduct. As a matter of law I don’t think “unfair contact term” would be a successful argument. It would be an interesting argument though.

The term is not unlawful, until such time it is determined as such. It will be interesting to see how the ACCC respond to the complaint which has been lodged.

I suggest that is avenue would be difficult to prove as the T&Cs were clearly stated and provided on the website. If for example of Coles advertised that every purchase is guaranteed (or make a promise) to receive the Coles mini and after the purchase, Coles came back pointing to T&Cs which were not available to the customer, then there possibly could grounds to make such complaints.

I also have not used Coles online shopping through to the payment/purchase completion page, but if one clicks on agreement with displayed T&Cs, these T&Cs could be enforceable. I am not sure if this is the process Coles uses (like I have seen many other online retailers use).

Yes they can complain. It also depends whether the complaint is reasonable.

It is will be interesting to see how the ACCC respond as this will give an indication of whether he complaint was reasonable and should be taken further.

I don’t think the Little Shop Promo Ts & Cs were accepted as part of online shopping Ts & Cs (but I can’t tell now as they have taken them off the online shopping completely). The little shop miniatures were shown as part of the basket of goods that were checked out. The number of little shop miniatures was automatically calculated.

This is possibly why:

https://coleslittleshop.com.au/

As indicated above, there was possibly a lag period between when the promotion was shown on the website and running out of the minis, and when the relevant information about the promotion was removed. It should also be noted that stores may run out later than the online store as well and Coles could chose to wait until most bricks and mortar stores also run out was well before removing from the website.

You may have been unlucky in making your purchase in the lag period.

As it is confirmed they have run out, did you try your local Coles store?.. as it is unlikely that you will get any from Coles online even if the ACCC rules in your favour. Coles will say that there are none available.

Potentially unlawful is probably a more accurate term. Either way, you place too much weight on terms and conditions. Businesses put everything including the kitchen sink into their terms in the hope that at least some of it sticks if its challenged.

The threshold for misleading or deceptive conduct only requires that the conduct was likely to decieve or mislead. It doesn’t require intention. The terms and conditions are only a small part. It is the overall conduct and impression that Coles gave that matters, as well as whether consumers were mislead (intentionally or not).

As for the outcome of the ACCC complaint, I expect he will recurve a generic copy paste and a link to the relevant section of the ACCC website. The ACCC don’t generally act on individual complaints.

In general your comments on terms and conditions don’t reflect the realities of CONSUMER transactions post 2011. The ACL is quite generous and protective in regards to consumer rights, and if it has been breached terms and conditions are almost irrelevant.

Coles hasn’t breach its own T&Cs. It appears that it has stuck to them to the letter. It would be interesting to know if they have been.

Coles has complied with its own T&Cs which is the relevant point and would be considered by the ACCC should it be taken further…and whether the T&Cs are fair or reasonable.

I agree that the consumer rights environment has changed significantly in the past decade to provide more balance to the consumer.

I also agree that the ACCC are unlikely to react on an individual complaint, unless there is merit in the basis for the complaint and it is likely to be a pattern of behaviour (such as they have received multiple similar complaints or it is known behaviour that needs addressing).

As outlined above, the issue raised challenges the standard practice of retailers with respect to promotions. I expect that the ACCC would have look at such practices or well aware since it is industry widespread practice. I expect that they would be reluctant to pursue Coles as it would have industry wide ramifications in relation to promotions…many of which possibly would disappear in the future. If this the case, the ACCC would weigh up whether the potential impact on promotions is in the customer interest. It would be difficult to argue that promotions, whether one agrees with them or not, are not in the customer (and retailers) interest.

That is correct and the ACCC also indicates that any fine print must be consistent with the overall marketing materials.

Looking at some of the catalogues and video advertising for the Little Coles Shop these clearly state that their availability is while stocks last and also point to their T&Cs for more infornation.

If Coles only pointed to the T&Cs through the advertising, then one might gain an impression that they would be suppied for the whole of the promotion period. But the advertising makes it clear that they are only available while stocks last. One’s interpretation of while stocks last would mean that they will be given out with $30 shop multiples while they have then in stock.

Do you have a screen shot if this?

If Coles was consistent with their other marketing material, it would be interesting to see if it also said…while stocks last or similar wording on tbe final purchase page. If it didn’t, then there could be an argument that if one hadn’t seen any of the advertising, promotion or marketing material which outlined/displayed that they would be available while stocks last, that one may have an impression that the minis would be supplied through the whole of tye promotional period. One would need a screen shot of the purchase page and also be able to prove one was not aware of the promotion/marketing campaign.

Just a quick word regarding specials at Coles. I wanted to get 3 bottles of dish washing detergent that I liked. They had only the ones whose scent I did not want. I went to front desk and told them that the ones that I wanted were not there. They searched the store and could find any.
After a while they told me that they had no stock for the time being and were happy to get them for me. Then, I asked if the special promo would apply. They said it would and 2 weeks later they rang me and gave the ones that I wanted…And the promo applied. So, I was quite happy about their service.

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Wow! All this over a give away plastic toy!

eBay has sets for anything from $2 to $1750! Go figure!

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Wow. Super disappointed with Chemist Warehouse and my online shopping experience with them! First of all, couple of week delay on getting item shipped. Obviously partly due to COVID delay, but just getting my order out of their warehouse took close to a week. Most disappointing though, was the stuff up on the order - I had taken advantage of their “gift with purchase” items on Natio beauty products (basically, buy $XX amount, and get a gift with purchase). The GWP was in my cart, it was on the shipping dockets (my order was split), and it never arrived. I complained via email back to them, and their response was “first in, best dressed - sorry you missed out”. When you have the thing in your order - confirmed - it is NOT a matter of missing out - it is a matter of them not providing me with what was in my order. I then asked how I go about returning the items I ordered, as the whole reason for ordering them was to take advantage of the gift with purchase. Cue the Radio Silence… Anyone else had this difficulty when dealing with this mob?

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Hi @marvellous, welcome to the community.

Often free offers such as ‘gifts’ have terms and conditions attached to them. The same applies to sale items at retailers as well (buy 2 and get 1 free is an example). Often these terms and conditions indicate what the offer is and it is possible that the offer was ‘while stocks last’.

Do you have the T&Cs associated with the offer and what do they say?

In relation to the order being confirmed, it is possible that the confirmation was for the item you purchased and not for the ‘gift’. Do you have a order confirmation email from Chemist Warehouse and what does it say?

An lastly, it is often recommended (even by Choice) that on should not make purchase decisions solely on the premise of getting loyalty card points, gifts etc as these are often marketing gimmicks and it may be possible to get better deals for the same items elsewhere.

Notwithstanding this, one would expect a business like Chemist Warehouse to remove offers from their website when they can no longer be honoured, such as running out of stock…noting that there can be a slight time lag between running out of stock and updating websites.

I have moved your post to an existing thread which discusses this same issue.

If you read through the posts you will see that it comes down to terms and conditions (T&C).

It is most likely that in the promotion advertising there was some fine print which said something like ‘while stocks last’, ‘for the first x number of customers’, ‘for a limited time’ or similar. This is their get out of jail card.

The GWP being in your cart indicated that you were eligible for the gift, but receipt of the gift would be subject to the T&Cs.

The gifts were probably not be a stock controlled item (unless securely attached to the product), and some of the gift stock may have gone missing. For whatever reason there was a discrepancy between the stock control system and actual stock on hand. Which meant that those at the end of the queue missed out.

And because you didn’t purchase the gift, it doesn’t come under the ACL.

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This reflects a pet peeve where a company offers a gift or premium to eg the first 2,000 customers but gives no way to know if you are clearly in, clearly out, or a maybe. If one gets ‘it’ on the invoice the company should be compelled to provide it. T&C excuses are a cop out from my view.

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hi phb. thanks for your response. Yes, it seems the T&C is “while stocks last”, but the fact that I have the receipt which clearly shows the items “paid for” (ie: as part of my itemised order) makes me think that I have been wronged… if they were genuine, in my view, they would have responded back to me with a clear and easy way to return the items at their cost, rather than not responding at all. anyhow! It will be the first and only time they get my patronage.

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So it seems. thanks for responding, and helping me to understand. Once bitten, twice shy, as they say!

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agreed PhilT! It wouldn’t have bothered me if it showed on the website, but then didn’t appear on my final invoice. But having it on the invoice certainly gave me no reason to think that I was not going to receive it. oh well! I’m a learning organisation! I have now learnt not to shop at CW.

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I find it incredible there is all this fighting over little plastic toys! It happens every time Coles issue their Little Shop promotions. I have not seen the same outrage over the Woolworth Discovery Garden promotion that gave away seed pots with every $30 spend for example, a very similar promotion at the same exchange rate and also for limited time periods.

Other Coles/Woolworth promotions such as the knife promo (so many points per $30 shop and so many points for a knife), the current pan promo, and previous container promo also attract criticism usually related to the amount of money needing to be spent to obtain the ‘free gift’ and then the most popular choice being unavailable once the required points have been collected.

But back to the little plastic toys, claiming a financial ‘worth’ to these things is a red herring. They are quite simply worth what idiots will pay for them on eBay or any other marketplace, but they have no intrinsic value themselves.

Good luck with ACCC but what exactly do you expect the outcome to be? You are unlikely to obtain the missed toys (there are none to be had) and also unlikely to be compensated for your ‘loss’ (you really haven’t incurred a loss - you got what you paid for i.e. the groceries).

At the end of the day, all these promotions are about getting you into the store and relieving you of more money than perhaps you would usually spend, hopefully, more frequently.

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While they may have no intrinsic value the world of ‘collectables’ remains buoyant and all sorts of rubbish attracts amazing prices to certain buyers who just feel compelled to hold and own ‘the thing’.

I stopped dissing these things about the time when playing computer and online games evolved from ‘wasting time’ as parents would tell one, to reliable 6 figure incomes for the ‘professionals’.

There is no telling how the human mind will value anything these days.

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This is nothing new. Having many criteria for price, some more apparent than others, is one of the key insights of shows like the Antiques Roadshow. The experts in every field will patiently explain that quality of construction, perceived beauty, age, rarity, provenance and fashion all contribute to auction price of artefacts. Some of these qualities are fickle and hard to understand to the outsider and hard to predict even for the expert. The same crew will also tell you through the history of each geegaw, sometimes over centuries, that fashion and demand are not only unpredictable but wander up and down and back again.

One attribute that I find hard to handle is that aspect of provenance of the touch of he great. An 18th century silver teapot by a good maker might be worth (say) 1,000 pounds but if it was credibly owned and operated by Lord Nelson it is worth ten times that. How can the fact that some bloke touched it or sipped tea that came out of it once or twice be worth 9,000 pounds? But it is. That is not happening to collections of little plastic toys but is part of the irrationality of the whole system of collectables.

An oddity that is more relevant is the passion of the eccentric devoted collector. People take pride in having their house filled and overflowing with the most absurd doodahs and spend their waking hours and family fortunes plotting their next acquisition of plastic elephants or beer cans. In some cases these collections are effectively worthless because there is no market for them, dunny rolls of the world are not that interesting to most of us. Children seem to suffer the pointless collection bug more than adults and most grow out of it but until they do marketeers will try to create fads if it will shift more product.

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