This is the ordinary person's version of the Rule, as provided by the FTC. This link connects to the actual Rule.
(It is important to remember that, in our case, the rule may not always apply because we offer products custom-made to your order, and on a customer-approval basis. However, we make every effort to ensure that your order is completed within a reasonable amount of time, which must necessarily be based on the complexity of the design, rarity of the materials, etc. We will always discuss the anticipated completion time with you, and obtain your approval before proceeding. We will also promptly notify you of any unexpected delays which may arise. Any regular stock items we have will be offered in accordance with the requirements of the rule.)
According to the FTC, the rule also applies to internet businesses and offers.
(Transcribed by Gemsmiths. Check the online version to ensure currency and in any case of doubt.)
A Business Guide to the Federal Trade Commission’s
MAIL OR TELEPHONE ORDER MERCHANDISE RULE
Produced in Cooperation with the Direct Marketing Association
January 2002
TABLE OF CONTENTS
QUESTIONS AND ANSWERS ABOUT THE RULE
THE FTC’S MAIL OR TELEPHONE ORDER MERCHANDISE RULE
To help you plan and operate your business, the Federal Trade Commission ("FTC") staff in cooperation with the Direct Marketing Association (DMA) has prepared this booklet about the FTC’s Mail or Telephone Order Merchandise Trade Regulation Rule (the "Rule"). The Rule’s requirements are explained in plain English. This discussion is followed by a question and answer section. The Rule itself is reprinted at the end of this booklet.
What Does the Rule
Cover?
It applies to most goods a customer orders from the
seller by mail, telephone, fax, or on the Internet.
It does not matter how the merchandise is advertised, how the customer pays, or who initiates the contact.
What is the Mail or
Telephone Order Rule?
The Rule requires that when you
advertise merchandise, you must have a reasonable basis for stating
or implying that you can ship within a certain time. If you make no
shipment statement, you must have a reasonable basis for believing
that you can ship within 30 days. That is why direct marketers
sometimes call this the "30-day Rule."
If, after taking the customer’s order, you learn that you cannot ship within the time you stated or within 30 days, you must seek the customer’s consent to the delayed shipment. If you cannot obtain the customer’s consent to the delay -- either because it is not a situation in which you are permitted to treat the customer’s silence as consent and the customer has not expressly consented to the delay, or because the customer has expressly refused to consent -- you must, without being asked, promptly refund all the money the customer paid you for the unshipped merchandise.
The following information will help you comply with the Rule.
What You Should Know Before
You Make a Shipment Representation
When you offer to sell
merchandise, you must have a "reasonable basis" for:
Whenever you change the shipment date by providing a delay notice, you must have a "reasonable basis" for:
When you take orders by telephone, you may choose to provide prospective customers with updated shipment information. This may differ from what you said or implied about the shipment time in your advertising. The updated shipment information you provide on the telephone supersedes any shipment representation you made in the advertising. You also must have a reasonable basis for the updated shipment representation.
"Reasonable basis" means that the merchant has, at the time of making the representation, such information as would under the circumstances satisfy a reasonable and prudent businessperson, acting in good faith, that the representation is true.
The evidence you need to demonstrate the reasonableness of your shipment representations varies with circumstances. The following, however, is important:
Remember: Whether you make a shipment representation or rely on the 30-day rule, your advertising should be unambiguous about when you will ship.
What You Must Know Before Making
Shipment Representations in Sales Involving Credit
Applications
If your customers apply to you to establish an
in-house new credit account or increase an existing credit line to
pay for the merchandise they order, the Rule provides the
following:
When Your Fulfillment Or Other
Obligations Begin ("Properly Completed" Orders)
The "clock"
on your obligation to ship or take other action under the Rule
begins as soon as you receive a "properly completed" order. An order
is properly completed when you receive the correct full or partial
(in whatever form you accept) payment, accompanied by all the
information you need to fill the order. Payment may be by cash,
check, money order, the customer’s authorization to charge an
existing account (including one you have created for the customer),
the customer’s application to you for credit to pay for the order,
or any substitute for these transactions that you accept.
It is irrelevant when you post or deposit payment, when checks clear, or when your bank credits your account. The clock begins to run when you receive a properly completed order.
Note, however, that if a customer’s check is returned or a customer is refused credit, the Rule stops the shipment clock. It is reset at day one when the customer gives you cash, the customer’s check is honored, or you receive notice that the customer qualifies for credit. At this point, you may take the amount of time you originally stated to fulfill the order.
What You Must Do If You Learn You
Cannot Ship on Time
When you learn that you cannot ship on
time, you must decide whether you will ever be able to ship the
order. If you decide that you cannot, you must promptly cancel the
order and make a full refund.
If you decide you can ship the order later, you must seek the customer’s consent to the delay. You may use whatever means you wish to do this -- such as the telephone, fax, mail, or email -- as long as you notify the customer of the delay reasonably quickly. The customer must have sufficient advance notification to make a meaningful decision to consent to the delay or cancel the order.
Some businesses adopt internal deadlines that are earlier than those set by the Rule to ensure that their delay notices give all customers a meaningful opportunity to consent to the delay. If businesses fail to ship or give delay notifications by their internal deadlines, they automatically cancel the orders and make refunds.
In any event, no notification to the customer can take longer than the time you originally promised or, if no time was promised, 30 days. If you cannot ship the order or provide the notice within this time, you must cancel the order and make a prompt refund.
What a First Delay Option Notice Must
Say
In seeking your customer’s consent to delay, the first
delay notice you provide to the customer (the "delay option" notice)
must include:
- the reason for the delay, and
- a statement that, if the customer agrees to the indefinite delay, the customer may cancel the order any time until you ship the merchandise.
If your first delay option notice provides a definite revised shipping date of 30 days or less, you must inform customers that their non-response will be treated as a consent to the delay.
Thus, your delay option notice might look something like this:
We will be unable to ship the merchandise listed above until [date 30 days or less later than original promised time]. If you don’t want to wait, you may cancel your order and receive a prompt refund by calling our toll-free customer service number, (800) 555-1234. If we do not hear from you before we ship the merchandise to you, we will assume that you have agreed to this shipment delay.
(Many merchants add clarifying language such as "Remember, if you want the merchandise, don’t call.")
If your first delay option notice provides a definite revised shipping date of more than 30 days or states that you do not know when you will be able to ship, you must tell your customers that if they do not respond, the order will be cancelled automatically within the originally promised time plus 30 days.
For example, suppose you have a reasonable basis for being able to ship in 30 days and you have chosen to make no shipment representation in your advertising. Within the 30 day period after you receive the customer’s properly completed order you learn that you cannot ship in time and, although you believe you will be able to ship at some point, you don’t know when. Your delay option notice to the customer might look something like this:
Because [explanation of backorder problem], we are unable to ship the merchandise listed above. We don’t know when we will be able to ship it.
If you don’t want to wait, you may cancel your order and receive a prompt refund by calling our toll-free customer service number, (800) 555-1234. If we do not hear from you and we have not shipped by [date 30 days later than original promised shipment time -- in this example, 60 days after receipt of the properly completed order], your order will be cancelled automatically and your money will be refunded.
If you do not want your order automatically cancelled on [date 30 days later than original promised shipment time], you may request that we keep your order and fill it later. If you do request that we keep your order and fill it later, you still have the right to cancel the order at any time before we ship it to you. You may use our toll-free number, (800) 555-1234, either to request that we fill your order later or to cancel it.
Remember: You are required to explain the nature of the backorder problem only if you provide an indefinite revised shipment date. This explanation should be detailed enough to permit the customer to judge what the possible length of the delay might be.
You also have the option of seeking your customer’s affirmative agreement to the delay. In any event, you must indicate what will happen if the customer does not respond.
What Later Notices Must Say
If
you cannot ship the merchandise by the definite revised
shipment date included in your most recent delay option notice,
before that date you must seek the consent of your customers to any
further delay. You must do this by providing customers a "renewed"
delay option notice. A renewed delay option notice is similar in
many ways to the first delay option notice. One important
difference: the customer’s silence may not be treated as a consent
to delay.
A renewed delay option notice must include:
- the reason for the delay, and
- a statement that, if the customer agrees to the indefinite delay, the customer may cancel the order any time until you ship.
If you have provided an appropriate and timely delay option notice and the customer agrees to an indefinite revised shipment date, no additional delay notices are required.
When You May Cancel an
Order
Instead of seeking the customer’s consent to delay, you
can always cancel the order and send a refund. In that case, you
must notify the customer and send the refund within the time you
would have sent any delay notice required by the Rule.
When You Must Cancel an
Order
You must cancel an order and provide a prompt
refund when:
The following is one example of a delayed order scenario:
How Quickly You Must Make a
Refund
When you must make a Rule-required refund, the
following applies:
How Much You Must Refund
If you
cannot ship any of the merchandise ordered by the customer,
you must refund the entire amount the customer "tendered," including
any shipping, handling, insurance, or other costs. If you ship some,
but not all, of the merchandise ordered, you must refund the
difference between the total amount paid and the amount the customer
would have paid, according to your ordering instructions, for the
shipped items only.
For example, if you charge a flat fee for shipping and handling regardless of the total number or cost of the items ordered, you need not refund any shipping and handling charges if you ship some items. On the other hand, if your shipping and handling charges are indexed to the number of items or the dollar amount of the order, you can keep only those shipping and handling charges that are appropriate to the number or dollar amount of the items actually shipped.
When making Rule-required refunds, you cannot substitute credit toward future purchases, credit vouchers, or scrip.
When the order is paid for in whole or in part by proofs of purchase, coupons, or other promotional devices, you must provide "reasonable compensation" to the customer for the proofs of purchase plus any shipping, handling, or other charges the customer paid. (The circumstances of each promotion may affect what is deemed to be reasonable.)
Why You Should Keep
Records
Although you are not required to keep records, an
accurate, up-to-date recordkeeping system can help show that you are
complying with the Rule. This is especially important because, in
any action to enforce the Rule, if you cannot document your use of
systems and procedures for complying, the Rule provides that you
bear the burden of proving you do comply. Your documentation should
provide answers to the following questions.
If you provide delay option notices by telephone, you may want to keep accurate records of the scripts you use. To help document your compliance with the Rule, you may find it useful to maintain a chronological record of all calls you make, including the number from which the call is made, the called number, the party contacted, and the duration of the contact.
Businesses often ask how long they should keep their records relating to Rule compliance. The statute of limitations on actions to enforce the Rule is three years for consumer redress and five years for civil penalties. State statutes of limitations for individual customer or state actions are sometimes longer. Check the state laws where you plan to do business.
What the Rule Does Not
Cover
The following sales are exempt from the
Rule:
The Rule also does not cover services, such as mail order photo-finishing. In the question and answer section that follows, you will notice other circumstances in which mail or telephone order merchandise may not be covered by the Rule.
Why You Should Comply with the
Rule
Merchants who violate the Rule can be sued by the FTC
for injunctive relief, monetary civil penalties of up to $11,000 per
violation (any time during the five years preceding the filing of
the complaint), and consumer redress (any time during the three
years preceding the filing of the complaint). When the mails are
involved, the Postal Service also has authority to take action for
problems such as non-delivery. State law enforcement agencies can
take action for violating state consumer protection laws.
Apart from this, your failure to ship on time, or your failure to notify your customers promptly about delays and to obtain their consent to the delays, or your failure to make full and prompt refunds when your customers do not consent to delayed shipment, can adversely affect your business by discouraging repeat purchases. Accordingly, most businesses regard compliance with the Rule as simply good business practice.
Questions and Answers About the Rule
The FTC staff receives questions from mail
or telephone order merchants who want to know how to comply with the
Rule in certain circumstances. Provided below are commonly-asked
questions and staff responses.
Using a Fulfillment House or
Drop-Shipper
Q: Who is liable for Rule violations caused by a
fulfillment house or drop shipper?
A: The seller is. This is because the person soliciting the order, not the agent fulfilling it, is the seller under the Rule. The person soliciting the order can control -- among other things -- the shipment representations made in soliciting the sale and the choice of fulfillment houses. The seller can adjust the shipment representations to include the time needed to transmit orders to a fulfillment house and for the fulfillment house to respond.
However, staff considers the following circumstances when deciding whether to recommend an enforcement action:
"Bill-me" Orders; Sales On
Approval
Q: We offer to ship merchandise ordered by mail or
telephone and to bill the customer later. Are we covered by the
Rule?
A: Whether the transaction is covered by the Rule depends on whether you bill as part of a credit arrangement made with the customer. For example, suppose you ship the merchandise under an arrangement where the customer has an open account or a charge account you have provided, and the customer authorizes you to charge the account. This is a credit sale and is covered by the Rule. The customer’s authorization to place a charge on the customer’s account meets the Rule’s test for coverage that the order is prepaid and thus properly completed when received by the merchant.
On the other hand, suppose you ship the merchandise along with an invoice payable upon receipt. This is not a credit or prepaid sale and is not covered by the Rule. Of course, if you are unreasonably slow in shipping the merchandise or do not ship in the time you promised, you could violate the FTC Act’s general prohibition against unfair or deceptive practices. In addition, in some instances, the customer may have the right under state law to refuse to accept the merchandise.
Q: Does the Rule cover sales on approval?
A: No. Sales on approval permit the prospective customer to return merchandise, usually after a "no obligation" or "free trial" period, even though it is exactly as represented in the merchant’s advertising. These sales do not require the customer to pay for the order until the merchandise is received and approved. Because the order is not prepaid with cash, check, money order, or charge, it cannot be treated as the "receipt of a properly completed order" -- which would trigger the Rule’s requirements.
Unordered Merchandise
Whether
or not the Rule is involved, in any approval or other sale you
must obtain the customer’s prior express agreement to receive the
merchandise. Otherwise the merchandise may be treated as
unordered merchandise. It is unlawful to:
Merchants who ship unordered merchandise with knowledge that it is unlawful to do so can be subject to civil penalties of up to $11,000 per violation. Moreover, customers who receive unordered merchandise are legally entitled to treat the merchandise as a gift. Using the U.S. mails to ship unordered merchandise also violates the Postal laws.
Insurance Charges
Q: What are
our responsibilities if we charge to insure delivery?
A: Instead of directing customers to make claims against the common carriers who may be responsible for losing merchandise, most merchants reship for the sake of customer satisfaction. To pay for these reshipment policies, some merchants ask customers to buy "insurance" or provide it as an option. By offering insurance, the merchant implicitly represents that it will honor any claim of nondelivery by providing prompt reshipment or, if reshipment is impossible, a prompt refund. It would be improper to collect fees from customers for reshipment insurance and not respond promptly and appropriately to their bona fide claims of loss.
Substitutions
Q: If a customer
orders an item which is backordered, can we substitute an item of
similar or better quality without the customer’s consent?
A: For backorders, the Rule provides only two ways of responding to a properly completed order for mail or telephone order merchandise: obtain the customer’s agreement to delayed shipment or provide a full and prompt refund. Unless the customer expressly agrees to the substitution beforehand, you do not have the option of substituting merchandise that is materially different from your advertised merchandise. The term "materially different" means that the merchandise differs in some manner that is likely to affect the customer’s choice of, or conduct regarding, the merchandise. Any product feature would be deemed material if it is expressly mentioned or depicted in advertising. Differences in design, style, color, fabric, or promoted end use also would be deemed material.
Dry-testing
Q: We want to sell
by mail or telephone a product that is not yet available. Does the
Rule apply?
A: It depends. In an advisory opinion, the FTC told a publishing company that it could "dry-test" its merchandise as long as the following conditions were met:
If these conditions are not met, the Rule applies.
Making Fast Shipment
Representations
Q: We represent that we ship in 48 hours. In
case of delay, when are we required to provide notification of
delay?
A: Within 48 hours of receipt of the order.
Q: Can we say 48 hours "most of the time?"
A: If you represent that you ship in 48 hours most of the time, you will be required to ship or provide notification of delay in 48 hours all the time. The Rule requires you to ship in the time you say. If you say you ship in 48 hours "most of the time," reasonable consumers will infer that you will ship their orders in 48 hours. Similarly, if you represent, "in-stock items ship immediately," unless you tell consumer when they order that the item is not in stock, you will be required to ship, provide notification of delay, or cancel the order immediately.
Notice by Posting and E-Mail
Q:
Can we send the delay option notice to the customer’s e-mail
address?
A: Yes.
Q: Can we provide a delay option notice by posting it on the customer’s "order-status" page of our website?
A: If you provide a delay option notice, you must choose a way that is reasonably likely to provide all the required information within the time period required by the Rule. If the consumer doesn’t visit the order-status page until after she misses her order, you haven’t complied with the Rule’s requirements that the delay option notice be provided within the promised shipment time. Of course, posting on the customer’s order-status page can be an excellent way to back up notification by another means.
Qualifying 30-day or Other Shipment
Representations
Q: In soliciting telephone orders we make no
shipment representation, so the 30-day rule applies. In taking the
order, the sales representative tells the customer that the
merchandise will be shipped in 72 hours. Then we discover that the
merchandise cannot be shipped in 72 hours, but can be shipped within
30 days. Do we have to get the customer’s agreement to a
delay?
A: Yes. The shipment representation you make in negotiating the sale during the telephone call supersedes any express shipment representation you made in soliciting the order or, if you made no express shipment representation, the 30-day shipment time. Your compliance with the Mail or Telephone Order Merchandise Rule will be determined based upon the 72-hour shipment representation.
WHERE TO GO FOR HELP
For more information about the Mail or
Telephone Order Merchandise Rule, call the Federal Trade Commission
toll-free: 1-877-FTC-HELP; write: Federal Trade Commission, Consumer
Response Center, 600 Pennsylvania Avenue, N.W., Washington, DC
20580; or visit: http://www.ftc.gov/.
You also may want to contact relevant trade associations, such as the Direct Marketing Association. Contact the DMA’s Washington, DC office at: 202-955-5030; write: 1111 19th Street, N.W., Suite 1100, Washington, DC 20036-3603; or visit: http://www.the-dma.org/.
Your local U.S. Postal Service or consumer protection agency may offer additional assistance. State and local governments also may have requirements with which you must comply. You should consult appropriate state agencies for information about laws that affect your business.
YOUR OPPORTUNITY TO
COMMENT
The Small Business and Agriculture
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards
collect comments from small business about federal enforcement
actions. Each year, the Ombudsman evaluates enforcement activities
and rates each agency's responsiveness to small business. To comment
on FTC actions, call toll-free 1-888-734-3247.
(Go to the Mail or Telephone Order Rule)
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