New Zealand’s competition regulator, The Commerce Commission, says 1-Day – which has since amalgamated with another entity - now trades under TheMarket and had promoted its daily deals ‘for today only’, despite often rolling them over consecutive days.

The Commerce Commission says the online store had also been programmed to progressively reduce the quantity of stock displayed as available throughout the day, meaning that consumers were often not seeing accurate information about the stock available or how long the offer would be available to them.

“By representing that both the sales offer period and quantity of stock were limited, consumers were encouraged to make quick purchasing decisions and may have been deterred from taking their time to make decisions about buying products, or from shopping around before buying,” notes the Commission.

Commerce Commission General Manager of Fair Trading, Vanessa Horne, says that the scarcity claims were often not based on the actual stock available or timeframe for purchasing the respective products from 1-Day.

Horne says that the promotion of daily deals and use of a countdown timer by 1-Day between 2016 and 2020 gave the impression that goods were available at an indicated price for a limited time, and a stock level indicator gave the impression that stock was running out.

“In fact, often neither of these things were true and on many occasions the goods were available at the same price the next day.

“In a physical store, we wouldn’t expect a retailer to say there’s one item left, when a number of items remain on the shelf or in the stockroom. The same goes for online – any representation about available stock needs to be truthful.”

The Commerce Commission notes that in sentencing in the Auckland District Court on 7 September 2022, Judge Winter said the purpose of the defendant’s misleading sales techniques was to pressure potential purchasers into making a snap or quick decision to purchase from the defendant company, at least within the 24 hour period as advertised as opposed to purchasing the same products from one of the defendant’s competitors.

“The misleading conduct was therefore a central plank of the defendant’s business strategy,” Judge Winter said.

“Given the lengthy period over which the defendant’s offending occurred, the nature of the offending which involved a two-pronged pressure misrepresentation of limited time to purchase and limited stock availability as well as the background guidance and experience of the company, I find the defendant’s offending was more than careless. The defendant’s offending was wilful.

“The defendant’s conduct gave it an unfair advantage in the market place over its competitors who did not employ pressure-selling techniques of this type and therefore prevented effective competition,” Judge Winter said in the judgment.

By way of background, the Commerce Commission says that following a sweep of online shopping sites in 2019, it wrote to a number of traders with guidance on the potential for sales practices to mislead consumers and breach the Fair Trading Act - and the Commission began investigating 1-Day after identifying that products often reappeared as Daily Deals and the amount of remaining stock appeared to be consistent for different products at the same time of day.

The Commission says that following contact from it, 1-Day ceased its use of the countdown timer and stock indicator - and it no longer offers Daily Deals.

A copy of the Judge’s sentencing notes is available on the case register on the Commission’s website.

The Commission has published new guidance on its website about misleading online sales practices which can be read here.

The Commission has information on its website about making accurate representations that can be substantiated, and about online sales practices.