consumers receive in the mail shipments of merchandise, books,
magazines, etc. that they have not ordered. Shipments of this type can
be a classic consumer fraud scheme, preying on a consumer's possible
ignorance of the law.
Such unordered merchandise might be accompanied by a bill or
by a notice to return the item within a certain period of time in order
to avoid billing. It might even contain a statement to the effect that,
"This is the merchandise you ordered."
The New York State Law
No individual or business is permitted to offer items for sale in a
manner, which includes the unsolicited sending of merchandise that was
not actually ordered or requested either verbally, or in writing by the
recipient. Any such merchandise shipped without having been ordered or
requested must be prominently marked on the container in bold letters: "This is a Gift. Payment Not Required for this Item."
However, the receipt of merchandise under an existing membership in a
club in which the recipient receives goods at regular intervals or a
plan where the recipient agrees to receive the merchandise without
further obligation shall not be considered the receipt of "unsolicited"
The receipt of any unsolicited goods shall be considered an
unconditional gift to the recipient who may use or dispose of it in any
way he/she sees fit without any obligation on his/her part to the
If the sender continues to send bills or requests for payment for any
items considered by law to be an unsolicited gift, the recipient may go
to court and seek an injunction against further requests for payment.
In such a court action, the court may award reasonable attorney fees
and court costs to the prevailing party.
Termination of "Club" Memberships
If a person is a member of an organization or club which regularly
sends merchandise for sale as a result of membership in the
organization or club, and the person notifies the organization of his
termination of membership by certified mail, return receipt requested,
any goods which are sent to the person after 30 days following the date
on the return receipt for the certified letter, can be considered
unconditional gifts to the person as defined by the law.
However, a person may not terminate an agreement with such an
organization in the above manner if such termination breaks any
agreement previously made with the organization. A member is required
to fulfill whatever purchase obligations he/she originally agreed to
with the organization.
1. If the merchandise was truly unordered, whether or not marked as a
gift, the recipient may use or dispose of the items as desired.
2. If the package is not marked as a gift, recipients should carefully
check their own memories and the memories of other household members or
employees to be certain that no one placed an order by mail or phone or
as part of any club membership or prior arrangement.
3. If a consumer has ordered an advertised item that is advertised as a
"free sample for inspection", he/she should be sure that the offer was
in writing, that he/she has read all the fine print and that he/she
retains a copy of the written advertisement. If the solicitation is by
phone, first ask for a written copy of the offer.
4. If the item was indeed ordered "for inspection" it is not considered
"unsolicited merchandise", and the recipient must act according to the
terms of the offer.
5. If demands for payment continue to arrive for unordered merchandise,
or if the unordered merchandise was shipped to a New York State
resident and not marked as a gift, the consumer may wish to seek help
from the Better Business Bureau that is located in the area of the
shipper's zip code. (Your local Better Business Bureau will be able to
tell you to which Better Business Bureau you should send your