§ 396-M — Mail-order or telephone-order merchandise

§ 396-m. Mail-order or telephone-order merchandise. 1. This section\nshall apply to any mail-order business or any telephone order business\nwhich is located in this state or advertises a New York state mailing\naddress or telephone number.\n 2. Definitions, as used in this section:\n a. "mail-order business" shall mean a business which is engaged in the\nsolicitation of orders by advertisement or otherwise for merchandise or\nservices connected with merchandise to be shipped to the customer\nthrough the mail or by other carrier, upon receipt of an order with\npayment or with charge account authorization remitted through the mail,\nelectronic mail or the Internet or by telephone and the merchandise by\nits nature is ready for use or consumption when advertised or offered\nfor sale and can be held in stock.\n b. "merchandise" shall mean tangible chattels bought for personal,\nfamily or household purposes.\n c. "shipment" shall mean the act whereby the seller physically places\nthe merchandise into the possession of the United States postal service\nor other carrier.\n d. "telephone order business" shall mean a mail order business which\naccepts orders by telephone, or a business which is primarily engaged in\nthe solicitation of orders by advertisement or otherwise for merchandise\nor services connected with merchandise to be shipped to the customer\nthrough the mail or by other carrier, upon receipt of an order with\ncharge account authorization remitted by telephone and the merchandise\nby its nature is ready for use or consumption when advertised or offered\nfor sale and can be held in stock.\n e. "accepts orders" shall mean, in the case of a mail order, receipt\nof an order with payment or with charge account authorization remitted\nthrough the mail, electronic mail or the Internet, and, in the case of a\ntelephone order, receipt of an order with charge account authorization\nand debiting the buyer's account.\n 3. No person, partnership, firm, association or corporation or agent\nor employee thereof who conducts a mail-order business or a telephone\norder business shall:\n a. advertise for sale merchandise which is not reasonably anticipated\nto be available for shipment within thirty days from date of publication\nor broadcast of advertisement or from date catalog or circular is\nmailed, unless a longer period of time is clearly and conspicuously\nstated in such advertisement. Whenever the term "thirty days" appears in\nthis section, such term shall include a longer period of time if clearly\nand conspicuously stated in such advertisement.\n b. accept orders for merchandise which is not reasonably anticipated\nto be available for shipment within thirty days from the date of receipt\nof the order together with payment or with charge account authorization\nin the case of an order remitted through the mail, electronic mail or\nthe Internet or within thirty days from the date the seller debits the\nbuyer's account in the case of an order placed by telephone.\n c. unless the seller qualifies and elects to be governed by paragraph\ni, fail to either ship ordered merchandise or issue a refund (if payment\nhas been remitted) for ordered merchandise which is not available within\nthirty days of receipt of order and payment therefor.\n d. unless the seller qualifies and elects to be governed by\nparagragraph i, fail to either ship ordered merchandise or issue a\ncredit (if charge-account authorization has been given and exercised by\nseller) for ordered merchandise which is not available within thirty\ndays of receipt of order and charge-account authorization therefor.\n e. fail to issue a refund or credit the customer's account if\npromised, upon demand of the customer within thirty days from the date\nof receipt of request for such refund provided the merchandise has been\nreturned, if required.\n f. fail to maintain a record of each complaint alleging failure to\nship merchandise or furnish services connected with merchandise\nsolicited and ordered on a pre-paid basis and the disposition of each\nsuch complaint. Such record shall be kept for a period of at least\neighteen months following the disposition of such complaint.\n g. fail to maintain records showing the employment of systems and\nprocedures designed to comply with requirements of this subdivision.\n h. fail to prominently feature in all advertising or other promotional\nmaterials containing a post office box address including order blanks\nand forms, the legal name of the company soliciting the order, the\ncomplete street address of such company and under what conditions a\nrefund will be issued including but not limited to whether a refund will\nbe issued:\n (i) at any time, or not beyond a point in time specified; or\n (ii) in cash, or as credit or in-house credit only. This paragraph\nshall not apply to a mail-order business that has a policy of accepting\nreturns, for a period of not less than twenty days after the date of\ndelivery of merchandise to the customer and providing a cash refund for\na cash purchase or providing a cash refund or issuing a credit for a\ncredit purchase, which credit is applied to the account on which the\npurchase was debited, in connection with the return of its unused and\nundamaged merchandise. Provided, however, that nothing contained herein\nshall prohibit a mail-order business from applying a cash payment for\nreturned merchandise towards a prior outstanding balance. Provided,\nfurther, that nothing contained herein shall be deemed to require a cash\nrefund of less than one dollar where the mail-order business provides\nin-house credit for such sum.\n i. where the seller, due to circumstances beyond his control, is\nunable to make shipment within the time required by this section, the\nprovisions of paragraphs c and d of this subdivision shall not apply if\nthe seller elects to be governed by this paragraph and does either of\nthe following:\n (i) sends to the buyer a notice of delayed shipment, stating the\nduration of the expected delay, providing the buyer with the opportunity\nto express his choice whether to cancel his order and receive a refund,\nbe shipped the merchandise or be furnished the services by a specified\nlater date, or to accept substitute merchandise of equivalent or\nsuperior quality. If the seller proposes to substitute merchandise, he\nshall describe it in detail, indicating how it differs from the goods\nordered. The notice shall be sent by first class mail and accompanied by\na self-addressed, postage paid device upon which the buyer may indicate\nhis choice, and mailed in advance of the expiration of the thirty day\nperiod, or that time stated in the solicitation. The notice shall\nexpressly advise the buyer that the order will be immediately cancelled\nand a refund forwarded where the buyer does not choose otherwise by\nresponse within thirty-five days of the date of mailing by the seller of\nthe above notice. If, prior to shipment, the seller receives a response\nfrom the buyer requesting refund, such refund shall be promptly made. If\nno response is received prior to the expiration of the thirty-five day\nperiod after the date of the mailing by the seller of the above notice,\nthe seller shall make a prompt refund.\n (ii) send the customer substitute merchandise of equivalent or\nsuperior quality, if the customer is extended the opportunity to return\nthe substituted merchandise and the seller promises to refund to the\ncustomer the postage cost of returning such merchandise together with\nany portion of the purchase price previously paid by the customer. Prior\nto or at the time of shipment of the substitute merchandise, a notice\nshall be provided to the customer stating the right to obtain a refund\nand reimbursement for the postage cost incurred in returning the\nsubstituted merchandise.\n For purposes of subparagraphs (i) and (ii) of this paragraph,\nmerchandise may not be considered of "equivalent or superior" quality if\nit is not substantially similar to the merchandise ordered, or not fit\nfor the usual purposes for which such merchandise is used, or if the\nseller normally offers the substituted merchandise at a price lower than\nthe price of the merchandise ordered.\n j. (i) in the case of an order for merchandise placed by telephone or\nby electronic means, accept an additional fee for expedited mailing or\nshipping, which is in excess of the lowest charge the seller would\naccept, in the regular course of business, for mailing or shipping of\nthe merchandise ordered, when the seller does not reasonably expect such\nmerchandise to be mailed or shipped within the next three business days\nafter the order was placed, unless:\n (A) the seller notifies the buyer, at the time the order is placed but\nbefore payment is accepted, that the seller anticipates that the\nmerchandise will not actually be mailed or shipped within the next three\nbusiness days after the order is placed; or\n (B) the seller contacts the buyer, by telephone or by electronic\nmeans, within the next three business days after the order was placed to\ninform the buyer:\n (a) that the mailing or shipping of the merchandise ordered is not\nreasonably anticipated to occur within the next three business days\nafter the order was placed;\n (b) of the date the seller reasonably anticipates the merchandise\nordered to be mailed or shipped;\n (c) that, at the buyer's option, the buyer may:\n (1) accept the reasonably anticipated delay in mailing or shipping; or\n (2) cancel the order and refund payment to the buyer within thirty\ndays; or\n (3) elect to have the merchandise ordered mailed or shipped in the\nregular course of business and refund the additional fee for expedited\nmailing or shipping to the buyer within thirty days; and\n (d) that, if the seller does not receive a response on the next\nbusiness day, the seller will mail or ship the merchandise ordered, in\nthe manner originally requested by the buyer. Provided, however, that\nshould the buyer contact the seller before the merchandise ordered has\nbeen mailed or shipped, nothing in this section shall be construed to\npreclude the seller from agreeing to any modifications to the buyer's\norder which are agreed to by both the buyer and seller.\n (ii) (A) For the purposes of this subdivision, a seller shall be\nconsidered to have mailed or shipped a buyer's merchandise when the\nseller causes such merchandise, and applicable postage or shipping fee,\nto be physically placed in the possession of the United States Postal\nService or other carrier. Nothing in this section shall impose any\nliability on the seller for delays solely attributable to the postal\nservice or carrier.\n (B) A statement or notice contained in the advertising material for\nthe merchandise, in a description of the merchandise, or in a\ndescription of the mailing and shipping options available to the buyer,\nwhich advises the buyer of the approximate time the seller reasonably\nanticipates the merchandise to be mailed or shipped, shall satisfy the\nnotification requirements of this section.\n 4. Whenever there shall be a violation of this section, an application\nmay be made by the attorney general in the name of the people of the\nstate of New York to a court or justice having jurisdiction to issue an\ninjunction, and upon notice to the defendant of not less than five days,\nto enjoin and restrain the continuance of such violations; and if it\nshall appear to the satisfaction of the court or justice that the\ndefendant has, in fact, violated this section, an injunction may be\nissued by such court or justice, enjoining and restraining any further\nviolation, without requiring proof that any person has, in fact, been\ninjured or damaged thereby. In any such proceeding the court may make\nallowances to the attorney general as provided in section eighty-three\nhundred three, subdivision six of the civil practice law and rules, and\ndirect restitution. In connection with any such proposed application,\nthe attorney general is authorized to take proof and make a\ndetermination of the relevant facts and to issue subpoenas in accordance\nwith the civil practice law and rules.\n