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1991-12-20
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/* Here is the full text of mailorder sales regulations of
the Federal Trade Commission together with comments. */
PART 435-MAIL ORDER
MERCHANDISE
Sec.
435.1 The Rule.
435.2 Definitions.
435.1 The Rule
In connection with mail order sales in commerce, as "commerce" is
defined in the Federal Trade Commission Act, it constitutes an
unfair method of competition, and an unfair or deceptive act and
practice for a seller:
(a)(1) To solicit any order for the sale of merchandise to be
ordered by the buyer through the mails unless, at the time of the
solicitation, the seller has a reasonable basis to expect that he
will be able to ship any ordered merchandise to the buyer: (i)
Within that time clearly and conspicuously stated in any such
solicitation, or (ii) if no time is clearly and conspicuously
stated, within thirty (30) days after receipt of a properly
completed order from the buyer.
/* Paragraph a(1) provides the general rules that mailorder
sellers must either ship within thirty days or CONSPICUOSLY
advise that the time period for an order is longer. */
(2) To provide any buyer with any revised shipping date, as
provided in paragraph (b) of this section, unless, at the time
any such revised shipping date is provided, the seller has a
reasonable basis for making such representation regarding a
definite revised shipping date.
(3) To inform any buyer that he is unable to make any representa-
tion regarding the length of any delay unless (i) the seller has
a reasonable basis for so informing the buyer and (ii) the seller
informs the buyer of the reason or reasons for the delay.
(4) In any action brought by the Federal Trade Commission, alleg-
ing a violation of this part, the failure of a respondent-seller
to have records or other documentary proof establishing his use
of systems and procedures which assure the shipment of merchan-
dise in the ordinary course of business within any applicable
time set forth in this part will create a rebuttable presumption
that the seller lacked a reasonable basis for any expectation of
shipment within said applicable time.
(b)(1) Where a seller is unable to ship merchandise within the
applicable time set forth in paragraph (a) (1) of this section,
to fail to offer to the buyer, clearly and conspicuously and
without prior demand, an option either to consent to a delay in
shipping or to cancel his order and receive a prompt refund.
Said offer shall be made within a reasonable time after the
seller first becomes aware of his inability to ship within the
applicable time set forth in paragraph (a)(1) of this section,
but in no event later than said applicable time.
/* Here is the procedure which must be followed when an order is
not shipped within the allowed time frame. */
(i) Any offer to the buyer of such an option shall fully inform
the buyer regarding his right to cancel the order and to obtain a
prompt refund and shall provide a definite revised shipping date,
but where the seller lacks a reasonable basis for providing a
definite revised shipping date the notice shall inform the buyer
that the seller is unable to make any representation regarding
the length of the delay.
(ii) Where the seller has provided a definite revised shipping
date which is thirty (30) days or less later than the applicable
time set forth in paragraph (a)(1) of this section, the offer of
said option shall expressly inform the buyer that, unless the
seller receives, prior to shipment and prior to the expiration of
the definite revised shipping date, a response from the buyer
rejecting the delay and cancelling the order, the buyer will be
deemed to have consented to a delayed shipment on or before the
definite revised shipping date.
(iii) Where the seller has provided a definite revised shipping
date which is more than thirty (30) days later than the applica-
ble time set forth in paragraph (a)(1) of this section or where
the seller is unable to provide a definite revised shipping date
and therefore informs the buyer that he is unable to make any
representation regarding the length of the delay, the offer of
said option shall also expressly inform the buyer that his order
will automatically be deemed to have been cancelled unless (A)
the seller has shipped the merchandise within thirty (30) days of
the applicable time set forth in paragraph (a)(1) of this sec-
tion, and has received no cancellation prior to shipment, or (B)
the seller has received from the buyer within thirty (30) days of
said applicable time, a response specifically consenting to said
shipping delay. Where the seller informs the buyer that he is
unable to make any representation regarding the length of the
delay, the buyer shall be expressly informed that, should he
consent to an indefinite delay, he will have a continuing right
to cancel his order at any time after the applicable time set
forth in paragraph (a)(1) of this section by so notifying the
seller prior to actual shipment.
/* If a second delay to ship occurs you must receive an immediate
refund or expressly agree to a refund. */
(iv) Nothing in this paragraph shall prohibit a seller who fur-
nishes a definite revised shipping date pursuant to paragraph
(b)(1)(i) of this section, from requesting, simultaneously with
or at any time subsequent to the offer of an option pursuant to
paragraph (b)(1) of this section, the buyer's express consent to
a further unanticipated delay beyond the definite revised ship-
ping date in the form of a response from the buyer specifically
consenting to said further delay. Provided, however, that where
the seller solicits consent to an unanticipated indefinite delay
the solicitation shall expressly inform the buyer that, should he
so consent to an indefinite delay, he shall have a continuing
right to cancel his order at any time after the definite revised
shipping date by so notifying the seller prior to actual ship-
ment.
(2) Where a seller is unable to ship merchandise on or before the
definite revised shipping date provided under paragraph (b)(1)(i)
of this section and consented to by the buyer pursuant to para-
graph (b)(1)(ii) or (iii) of this section, to fail to offer to
the buyer, clearly and conspicuously and without prior demand, a
renewed option either to consent to a further delay or to cancel
the order and to receive a prompt refund. Said offer shall be
made within a reasonable time after the seller first becomes
aware of his inability to ship before the said definite revised
date, but in no event later than the expiration of the definite
revised shipping date:
Provided, however, That where the seller previously has obtained
the buyer's express consent to an unanticipated delay until a
specific date beyond the definite revised shipping date, pursuant
to paragraph (b)(1)(iv) of this section or to a further delay
until a specific date beyond the definite revised shipping date
pursuant to paragraph (b)(2) of this section, that date to which
the buyer has expressly consented shall supersede the definite
revised shipping date for purposes of paragraph (b)(2) of this
section.
(i) Any offer to the buyer of said renewed option shall provide
the buyer with a new definite revised shipping date, but where
the seller lacks a reasonable basis for providing a new definite
revised shipping date, the notice shall inform the buyer that the
seller is unable to make any representation regarding the length
of the further delay.
(ii) The offer of a renewed option shall expressly inform the
buyer that, unless the seller receives, prior to the expiration
of the old definite revised shipping date or any date superseding
the old definite revised s