Legal Alert – National Consumer Service Approves Interpretative Ruling on In-Store Recalls

On April 21, 2025, the National Consumer Service (“SERNAC”) approved the “Interpretative opinion on in-store pick-up, which resolves request No. 34463985”, which, in substantive terms, interprets Article 16 letter b) of Law No. 19,496 on Consumer Rights Protection (“LPDC”), and rules on the legality of the charge for in-store pick-up.

The opinion refers to two main issues. First, what is the scope of the obligation to deliver a product by suppliers that participate in e-commerce and have physical stores, and second, what are the duties of information that suppliers have regarding the delivery costs associated with the online sale of a product.

I. Supplier’s obligation to offer a free delivery method

According to SERNAC, the law prohibits, within the framework of a sales contract, the imposition of “additional services not agreed upon by the consumer”. However, additional charges may be made provided that the following copulative requirements are met: (i) the charges must represent additional services, (ii) they may be freely accepted or rejected by the consumer, and (iii) they must be stated separately.

In the opinion, SERNAC analyzed whether the fact that the supplier charges for picking up a product purchased online in a physical store complies with the requirements described above.

In this context, SERNAC argued that the consumer contract by which a supplier sells a thing to a consumer is a contract of sale by virtue of which the former has the obligation to give the latter the object offered, i.e., to deliver it materially. The consumer, in turn, contracts the obligation to pay the price.

According to the opinion, these obligations are essential and, therefore, “it does not seem conceivable that, being an obligation inherent to the contract, the supplier charges an additional price for the mere fulfillment of what has been agreed (…)”. Consequently, SERNAC interprets, in e-commerce purchases and sales, the fulfillment of the supplier’s obligation cannot mean an additional monetary burden for the consumer. Thus, the supplier that in addition to selling online has physical stores “will only comply with the essential obligation arising from the contract of sale to the extent that it establishes, at least, a free mode of delivering the purchased item to the consumer”.

In this sense, the delivery service may be considered an additional service and charged for, provided that there is an alternative form of free delivery.

Therefore, SERNAC concludes that establishing in the terms and conditions costs for the fact of delivering the thing sold is contrary to the LPDC and constitutes an abusive clause. Likewise, says SERNAC, clauses that impose the payment of an additional amount in a tied manner, without giving the consumer the possibility of rejecting such payment, are abusive.

II. Form in which the costs associated with other delivery alternatives must be communicated.

In the opinion, SERNAC also analyzes the way in which the costs associated with a specific delivery modality must be reported in order to comply with the requirements of the LPDC.

In this context, SERNAC analyzes two reprehensible patterns of conduct in which suppliers cannot engage, namely: i) “hidden costs, hidden or drip charges”, which are characterized by revealing charges that had not been previously informed to users just before making a purchase; and ii) “dark patterns”, which are those strategies used by websites and applications that force people to do things they do not want (for example, to require mandatory registration of personal data to complete a purchase).

It then concludes that the obligation to pay for delivery or withdrawal informed in the terms and conditions will be an abusive clause and a dark pattern in the event that the consumer learns of additional costs at the end of the purchase and is not allowed to continue shopping unless he/she accepts it, as established in art. 16° letter b) of the LPDC.

In conclusion, SERNAC states that suppliers that have physical stores, when making sales through e-commerce, must at least have a free delivery mechanism for the consumer. In addition, it argues that they may only charge for other delivery mechanisms if they are additional to the free one, if they are consigned separately from the main obligation, if they are duly informed in advance, and if the consumer can accept or reject them.