2009-10-30 / Columnists

Notes On Consumer Affairs

By Assemblywoman Audrey Pheffer

AUDREY PHEFFER AUDREY PHEFFER Have you received merchandise through the mail that you did not order? If so, you are not alone. In order to boost sales, some companies have been known to ship unordered merchandise, such as a book or pocket knife, to consumers and then demand payment un - less the merchandise is returned at the consumer's expense.

This marketing technique is restricted under state and federal law, which provide that consumers who receive unordered merchandise may treat the merchandise as a free gift that does not have to be returned. Unordered merchandise sent to a consumer must also be prominently marked with a notice that reads: "THIS IS A GIFT. PAYMENT NOT REQUIRED FOR THIS ITEM."

If you receive unordered merchandise, you are under no legal obligation to notify the seller, though it is a good idea to inform the seller via certified letter that you did not order the item, and that you will be exercising your legal right to keep it for free.

You should be aware that this protection does not apply to the receipt of any merchandise pursuant to an existing membership or club arrangement in which you agree to receive merchandise at specified intervals. You should also keep in mind that businesses are allowed to send sample merchandise that is clearly marked free, and charitable organizations may send merchandise along with a solicitation for contributions, provided that no demand for payment accompanies such merchandise.

If you are unable to resolve a dispute involving unor - dered merchandise with a company on your own, you may seek assistance from the New York State Consu - mer Protection Board (website: http://www.consumer.state.ny.us; phone: 1-800-697-1220), the New York State Attorney General (website: http://www.oag.state.ny.us; phone: 1- 800-771-7755), or the United States Postal Inspection Service (website: https://postalinspectors.uspis.gov; phone: 877-876-2455).

New York's law provides consumers with the right to sue a company that mails unordered merchandise and proceeds to send multiple billing statements or requests for payment. However, under the law a consumer who brings a successful case is only authorized to receive an injunction against the company to stop such conduct and reasonable attorney's fees and costs. Since no damage awards or civil penalties are allowed, very few, if any, cases have been brought against companies that send unordered merchandise.

In order to increase consumer recourse and encourage compliance, the Committee reported, and the Assembly passed A.8049 (Zebrowski), which would significantly enhance the law's enforcement provisions by autho rizing the Attorney General or any person adversely affected by a violation to bring legal action against a violator to recover the greater of actual damages sustained or up to $500 for each instance in which merchandise was sent in violation.

The bill is awaiting action in the Senate.

For more information, you may visit the Federal Trade Commission's fact sheet on how to deal with unordered merchandise at: http://www.ftc.gov/bcp/edu/pubs/ consumer/ products/pro15.shtm

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