Rabbi Meir Orlian
Sam and Dan were publishing a Hebrew-English monthly calendar to distribute free to families in their community. To cover the publishing costs, Sam sold advertising space in the calendar to local businesses.
"We need to charge $600 per ad to cover the expenses," Dan calculated.
Sam began making phone calls to various businesses in the neighborhood, asking for $600. Many of the small, local businesses considered the price high, and were willing to advertise only when Sam lowered the price to $400; the larger businesses accepted the price without question.
"At this rate, we are going to fall short of our goal," said Dan.
"What if I try quoting the larger businesses a higher price?" wondered Sam.
His next called was to the branch manager of a bank in his neighborhood. "We are selling ad space in our local calendar," he said.
"How much is a box?" asked the branch manager.
"$800 for a box," he said. "We plan on distributing 5,000 copies of the calendar, and the advertising covers our publishing expenses."
"OK," agreed the manager. "Put us down."
"I think we should implement a two-tier pricing system," Sam suggested to Dan. "I'll charge the smaller business $400, and the larger businesses, $800."
"Aren't you cheating the larger businesses?" asked Dan. "You're asking them to pay twice the price of the smaller businesses!"
"I don't see what the problem is," said Sam, "Why can't I charge what I want?! I'll check with Rabbi Dayan, though."
Can Sam implement a two-tier pricing system, based on the size of the business?
"There are two issues to consider, ona’ah (overcharging) and geneivas daas (misleading)," said Rabbi Dayan. "Bottom line, it depends on whether the higher price of $800 is still reasonable and whether you post a standard advertising price."
"Could you please elaborate?" asked Sam.
"Charging a price significantly deviant from the norm is a violation of ona’ah," explained Rabbi Dayan. "However, most items nowadays, including advertising space, don't have a set market price, but rather there is a price range. Anything within the fair range based on market conditions, even if higher than average, is not considered ona'ah; beyond the fair range is considered ona'ah (Aruch Hashulchan, C.M. 227:7; Hilchos Mishpat, Ona'ah, Intro. ch. 3).
"Nonetheless, if you post a standard price, it would be misleading (geneivas da'as) to quote a higher price on the phone to one unaware. If there is no standard price, you are allowed to charge any price within reasonable range for such advertising, even though you offer it for less to other advertisers. You are not required to disclose that you charged others a lower price, unless specifically asked, in which case you may not lie (C.M. 228:6).
"I should add," added Rabbi Dayan, "that the advertising may be worth more to a large business, since it potentially attracts more customers. Furthermore, many items have a high 'list price,' which is charged in practice only to official customers, whereas the items are usually sold retail at a discounted price."
"Does it make a difference whether the potential advertiser is Jewish or not?" asked Sam.
"The halachic requirement to refund ona'ah is only to Jews, but there is a dispute whether one may overcharge non-Jews initially," replied Rabbi Dayan. "Moreover, geneivas da'as (misleading) even of a non-Jew is prohibited. Therefore, if there is a standard price, many maintain that it is prohibited to misleadingly present a high price to a non-Jewish advertiser, who relies on you, as if it were the standard price (C.M. 227:26; Sma 231:1; Shulchan Aruch Harav, Ona'ah #11; Pischei Choshen, Onaah 10:).
Ruling: If you post standard advertising prices, it is prohibited to state a misleading higher price on the phone; if there is no standard advertising price, it is permissible to charge any price that is reasonable, even if you charge one client more than another.