The “was $89, now $39” price that was never $89

Key takeaways

• Under FTC guides dating to 1967, a “was” price must be a real price the seller openly offered for a reasonably substantial period, not a number inflated to make a sale look big².
• California goes further: a former price generally must have been the going price within the three months before the ad, unless the ad says when it applied⁵.
• Research going back decades shows that an inflated “regular” price makes a deal seem more valuable and shifts the price shoppers think of as normal¹⁶⁷.
• A 2022 European sweep found fake countdown timers on 42 of 399 online shops, and an FTC staff report lists timers that reset as a deceptive design trick⁸¹².
• The FTC’s junk fees rule, in effect since May 2025, covers only event tickets and short-term lodging, so check the checkout total yourself on everything else¹⁴.

Antonio Hinojos bought Samsonite luggage at Kohl’s because it was marked 50% off an “original” price of $299.99. He later sued, claiming the store routinely sold the luggage at the “sale” price, so the higher price was fiction¹.

A lower court threw the case out. It reasoned that he got the merchandise he wanted at the advertised price, so where was the harm?

In 2013, the U.S. Court of Appeals for the Ninth Circuit disagreed. A shopper who buys because of a false former price, and would not have bought otherwise, has lost money under California law, the court held¹.

The judges explained why. For many shoppers, the original price is a signal of what a product is worth. The court pointed to marketing research showing that a higher reference price makes a deal seem more valuable, and that bigger discounts make people less likely to keep looking¹.

If you shop for supplements, skin care or wellness gear online, you have seen the modern versions. “Was $89, now $39.” “Sale ends in 14:59.” “Buy 3, get 3 free.” Some of these offers are real, and some are not.

This guide explains what the law requires, why these tactics work even on careful shoppers, and a five-minute routine for finding the price you would really pay.

A crossed-out price is a promise that the old price was real

The Federal Trade Commission’s Guides Against Deceptive Pricing date to 1967². FTC guides are the agency’s reading of the laws it enforces, and a company that ignores them can face FTC action³.

The core rule is simple. A former price must be the actual, bona fide price at which the seller openly offered the item, regularly and for a reasonably substantial period. A price inflated just to create a big markdown is fictitious, and the “bargain” is false².

The guides cover the common variations, too²:

• “Compare at” or “retail value”: The higher price must reflect what sellers in the area really charge in substantial sales, not a price a few small shops ask.
• List price or MSRP: A suggested price can mislead if it sits well above what the product sells for.
• “Wholesale” or “factory” prices: Calling a retail price either one is deceptive when it isn’t true.
• “Limited” offers: An offer billed as limited must be limited.
• Tiny cuts: Calling a drop from $10 to $9.99 a sale is misleading.

California’s law is sharper. A former price can be advertised only if it was the going market price within the three months right before the ad, unless the ad clearly states when that price applied⁵. The Hinojos ruling confirmed that shoppers misled by a fake former price can bring a case under California’s false-advertising laws¹.

Picture a magnesium supplement listed at “Reg. $64.99” and marked down to $32.99 every day of the year. If it never sold at $64.99 for any real stretch of time, the regular price is a prop.

By the same logic, be wary of a “doctor’s price” or “practitioner price” that everyone gets. A label that implies a special discount nobody is excluded from works much like a fake “wholesale” price, which the guides call deceptive².

Why a fake “was” price works on careful shoppers

Most of us don’t carry a price list in our heads for turmeric capsules or vitamin C serum. When a page shows a crossed-out number, that number becomes the yardstick. Marketers call it a reference price.

Researchers have tested this for decades. In two experiments published in 1998, the price shoppers had in mind as normal moved with both the sale price and the advertised “regular” price⁷. A review that same year, which pooled results across many studies, concluded that comparison pricing is a potent sales tool that also leaves wide room for deception⁶.

The 1992 research summary cited in Hinojos found the same pattern. Higher reference prices raised how much buyers valued a deal and how willing they were to buy, and bigger claimed discounts made them search less for a lower price¹.

Britain’s Competition and Markets Authority reviewed the evidence in 2022. It found strong evidence that reference prices and hidden fees change consumers’ choices¹¹.

This is not about being gullible. It is how judgment works when you lack information: the number on the screen fills the gap.

Honest prices fit natural-health values

Many natural-health shoppers care about purity, honesty and spending wisely on things that work. A brand that asks you to trust its sourcing and testing claims should earn that trust at the price tag, too.

A fake markdown is a small falsehood told at the very start of the relationship. You are entitled to treat it as information about the seller.

Countdown clocks and “only 3 left” messages

In a 2022 staff report, the FTC listed design tricks that push people to buy⁸:

• countdown timers that reset or vanish when they hit zero
• “limited time” offers with no real deadline
• low-stock warnings when supply is fine
• claims that many other shoppers have the item in their carts
• “24 people are viewing this” messages that aren’t true

These are not rare. In a 2019 study, computer scientist Arunesh Mathur and colleagues crawled about 11,000 shopping sites. They found 1,818 examples of such design tricks, deceptive ones on 183 sites, and 22 outside companies selling these features to stores as ready-made tools⁹.

A 2022 sweep by European consumer authorities checked 399 online shops. It found at least one manipulative design on 148 of them, including fake countdown timers on 42¹².

The evidence on whether timers work is mixed. In a large online experiment published in 2021 by Jamie Luguri and Lior Strahilevitz, a countdown timer alone did not significantly change choices, but hiding key information roughly doubled sign-ups, from 14.8% to 30.1%¹⁰.

Other studies reviewed by British regulators found that scarcity claims raise clicks and purchases. In one experiment, people who jumped at timed offers did worse than people who waited to compare, and repeat rounds didn’t teach them to resist¹¹. As of 2022, false “limited time” pressure was already banned outright in the U.K.¹¹.

In the U.S., the closest written standard is the FTC’s long-standing warning that an offer billed as “limited” must be limited².

“Buy 3, get 3 free” and the free bottle

The FTC has a separate guide for the word “free,” issued in 1971⁴. A free offer assumes a regular price for the item you must buy. That regular price must be one the seller openly and actively charged for a reasonably substantial period, which the guide defines as 30 days⁴.

The guide sets other limits⁴:

• All conditions must be stated clearly at the start. An asterisk pointing to fine print is not enough.
• The seller should not raise the price or lower the quality of the item you must buy to cover the “free” one.
• The same product should not be advertised as free in an area for more than six months out of 12, with at least 30 days between offers and no more than three offers a year.

Here is how the math plays out. Picture a site that lists one bottle at $69 and a “buy 3, get 3 free” bundle at $207. That works out to $34.50 a bottle. If almost no one ever pays $69 for a single bottle, the free bottles are a pricing story, not a gift.

The useful questions are different. Is $34.50 a fair price for this product? Will you finish six bottles before they expire?

“Free” can also be the door to a subscription. The FTC sued a supplement seller, Health Formulas, which advertised free trials and then billed buyers $60 to $210 a month unless they canceled. The charges sat in small, dense type⁸. In one study cited by the FTC, putting recurring-charge terms in small gray print more than doubled the number of people who accepted a trial⁸.

Fees that show up at checkout

Drip pricing means showing part of a price up front and adding mandatory fees later. It works. The FTC’s report cites a ticketing study in which buyers who saw fees only at the end spent about 20% more and were 14% more likely to complete the purchase⁸.

In December 2024, the FTC finalized its Rule on Unfair or Deceptive Fees. It took effect May 12, 2025. It requires the total price, including mandatory fees, to be the most prominent price, but only for live-event tickets and short-term lodging such as hotels¹⁴.

For other industries, the FTC said, deceptive fees remain illegal under long-standing law, and it will act case by case¹⁴. That covers supplements, skin care and wellness devices.

California has a broader rule. Since July 1, 2024, most businesses selling to California consumers must include all mandatory fees in the advertised price¹⁵. Government taxes and reasonable shipping costs can be added later, but a handling charge must be built into the price¹⁵.

Europe now requires the real prior price. The U.S. does not.

Since May 28, 2022, European Union rules have required any announced price cut to show the prior price. That prior price must be the lowest one the seller charged in at least the 30 days before the cut¹³.

Clear rules have not ended the problem. When EU authorities checked 16,000 products on 176 websites during Black Friday 2022, about half showed a price cut. About one in four of those claims did not comply with EU law, and at least 43% of sites had violations¹².

A sweep in late 2025 looked at 314 sellers. At least 30% did not follow the price-cut rules, and only 40% fully complied¹².

The U.S. federal standard, “a reasonably substantial period,” gives sellers more room². The lesson for you is the same on both sides of the Atlantic: treat the crossed-out price as a claim to check, not a fact.

The evidence on whether these tactics change what you buy

Here, “works” means the tactic changes what shoppers do. The ratings use four levels: strong evidence, promising but early, not enough evidence, and evidence says no.

Tactic	What research shows	Rating
Inflated “was” or “compare at” prices	Experiments and a review of many studies find reference prices raise perceived value and move the price people think of as normal67.	Strong evidence
Fees revealed late in checkout	A ticketing study found buyers spent about 20% more, and U.K. regulators rate the evidence as strong811.	Strong evidence
Key terms buried in fine print	A large experiment found hidden information roughly doubled sign-ups10.	Promising but early
Countdown timers and “only 3 left”	One large experiment found no clear timer effect, while other studies find scarcity claims raise clicks and sales1011.	Promising but early, with mixed results

A five-minute routine to find the real price

Use this before any purchase that comes with a deadline or a crossed-out price:

1. Cover the crossed-out number. Ask whether the sale price alone is worth it to you.
2. Convert to cost per serving. Divide the price by the number of servings or days the product lasts.
3. Search the exact product. Look up the name, size and count at two or three other sellers, including the brand’s own site.
4. Check the price history. Free web archives such as the Internet Archive’s Wayback Machine may hold older copies of the product page. Your own receipts help, too.
5. Test the clock. Reload the page later or open it in a private window. If the timer restarts or “only 3 left” never changes, ignore it.
6. Go to the last checkout screen. Stop before you enter card details and compare the total with the advertised price.
7. Read the fine print by the buy button. Look for prechecked boxes that start a subscription.
8. Do the bundle math. Divide the total by the number of bottles, then check the expiration date.
9. Take a screenshot. Save the offer page, with the date, before you pay.

One more habit helps: if a purchase over $50 claims to expire tonight, sleep on it. A real bargain usually comes back.

How to report a misleading price

• Fake former prices, fake deadlines or hidden fees: Report them to the FTC at ReportFraud.ftc.gov.
• State law problems: Contact your state attorney general’s consumer office. California’s attorney general has posted guidance on the state’s hidden-fees law¹⁵.
• A charge you did not agree to: Call your card issuer and ask about disputing it.
• Evidence: Keep screenshots, order confirmations and the product page address.

Questions readers ask

The bottom line

A crossed-out price is a claim, and the law says it must be true. Inflated “was” prices and fake deadlines work by handing you a yardstick or a rush when you have neither, and hidden fees work by showing you only part of the price.

Supply your own reference point instead: the cost per serving, the price at other sellers and the true checkout total. Then the only number that matters is the one you would pay today.

Keep exploring: multilevel marketing, greenwashing, fear-based advertising and fake reviews.

Related reading

• The supplement math that changes which bottle wins
• The wellness subscription you meant to cancel
• Six questions to ask before you buy anything for your health
• Fake reviews became illegal in 2024, yet reviews still mislead you
• Wellness MLMs sell real products and a business few people profit from

Sources

1. U.S. Court of Appeals for the Ninth Circuit. Hinojos v. Kohl’s Corp., No. 11-55793. Opinion, 2013. govinfo.gov
2. Federal Trade Commission. “Guides Against Deceptive Pricing,” 16 CFR Part 233. Electronic Code of Federal Regulations. ecfr.gov
3. Federal Trade Commission. “Purpose” of industry guides, 16 CFR 1.5. Electronic Code of Federal Regulations. ecfr.gov
4. Federal Trade Commission. “Guide Concerning Use of the Word ‘Free’ and Similar Representations,” 16 CFR Part 251. Electronic Code of Federal Regulations. ecfr.gov
5. State of California. Business and Professions Code section 17501 (2025 California Code, via Justia). law.justia.com
6. Compeau LD, Grewal D. “Comparative Price Advertising: An Integrative Review.” Journal of Public Policy & Marketing, 1998. doi.org
7. Grewal D, Monroe KB, Krishnan R. “The Effects of Price-Comparison Advertising on Buyers’ Perceptions of Acquisition Value, Transaction Value, and Behavioral Intentions.” Journal of Marketing, 1998. doi.org
8. Federal Trade Commission staff. “Bringing Dark Patterns to Light.” Staff report, September 2022. ftc.gov
9. Mathur A, Acar G, Friedman MJ, Lucherini E, Mayer J, Chetty M, Narayanan A. “Dark Patterns at Scale: Findings from a Crawl of 11K Shopping Websites.” Proceedings of the ACM on Human-Computer Interaction (arXiv preprint), 2019. arxiv.org
10. Luguri J, Strahilevitz LJ. “Shining a Light on Dark Patterns.” Journal of Legal Analysis, 2021. academic.oup.com
11. Competition and Markets Authority (U.K.). “Online Choice Architecture: How Digital Design Can Harm Competition and Consumers.” Discussion paper, 2022. assets.publishing.service.gov.uk
12. European Commission. “Sweeps” (consumer protection enforcement results, including 2022 dark patterns, Black Friday 2022 and 2025 price-reduction sweeps). commission.europa.eu
13. European Parliament and Council. Directive (EU) 2019/2161 of 27 November 2019 (adds Article 6a on price reductions to Directive 98/6/EC). EUR-Lex. eur-lex.europa.eu
14. Federal Trade Commission. “Federal Trade Commission Announces Bipartisan Rule Banning Junk Ticket and Hotel Fees.” December 2024. ftc.gov
15. California Department of Justice, Office of the Attorney General. “Hidden Fees” (SB 478 guidance). oag.ca.gov