N.Y. General Business Law Section 396-M
Mail-order or telephone-order merchandise


1.

This section shall apply to any mail-order business or any telephone order business which is located in this state or advertises a New York state mailing address or telephone number.

2.

Definitions, as used in this section:

a.

“mail-order business” shall mean a business which is engaged in the solicitation of orders by advertisement or otherwise for merchandise or services connected with merchandise to be shipped to the customer through the mail or by other carrier, upon receipt of an order with payment or with charge account authorization remitted through the mail, electronic mail or the Internet or by telephone and the merchandise by its nature is ready for use or consumption when advertised or offered for sale and can be held in stock.

b.

“merchandise” shall mean tangible chattels bought for personal, family or household purposes.

c.

“shipment” shall mean the act whereby the seller physically places the merchandise into the possession of the United States postal service or other carrier.

d.

“telephone order business” shall mean a mail order business which accepts orders by telephone, or a business which is primarily engaged in the solicitation of orders by advertisement or otherwise for merchandise or services connected with merchandise to be shipped to the customer through the mail or by other carrier, upon receipt of an order with charge account authorization remitted by telephone and the merchandise by its nature is ready for use or consumption when advertised or offered for sale and can be held in stock.

e.

“accepts orders” shall mean, in the case of a mail order, receipt of an order with payment or with charge account authorization remitted through the mail, electronic mail or the Internet, and, in the case of a telephone order, receipt of an order with charge account authorization and debiting the buyer’s account.

3.

No person, partnership, firm, association or corporation or agent or employee thereof who conducts a mail-order business or a telephone order business shall:

a.

advertise for sale merchandise which is not reasonably anticipated to be available for shipment within thirty days from date of publication or broadcast of advertisement or from date catalog or circular is mailed, unless a longer period of time is clearly and conspicuously stated in such advertisement. Whenever the term “thirty days” appears in this section, such term shall include a longer period of time if clearly and conspicuously stated in such advertisement.

b.

accept orders for merchandise which is not reasonably anticipated to be available for shipment within thirty days from the date of receipt of the order together with payment or with charge account authorization in the case of an order remitted through the mail, electronic mail or the Internet or within thirty days from the date the seller debits the buyer’s account in the case of an order placed by telephone.

c.

unless the seller qualifies and elects to be governed by paragraph i, fail to either ship ordered merchandise or issue a refund (if payment has been remitted) for ordered merchandise which is not available within thirty days of receipt of order and payment therefor.

d.

unless the seller qualifies and elects to be governed by paragragraph i, fail to either ship ordered merchandise or issue a credit (if charge-account authorization has been given and exercised by seller) for ordered merchandise which is not available within thirty days of receipt of order and charge-account authorization therefor.

e.

fail to issue a refund or credit the customer’s account if promised, upon demand of the customer within thirty days from the date of receipt of request for such refund provided the merchandise has been returned, if required.

f.

fail to maintain a record of each complaint alleging failure to ship merchandise or furnish services connected with merchandise solicited and ordered on a pre-paid basis and the disposition of each such complaint. Such record shall be kept for a period of at least eighteen months following the disposition of such complaint.

g.

fail to maintain records showing the employment of systems and procedures designed to comply with requirements of this subdivision.

h.

fail to prominently feature in all advertising or other promotional materials containing a post office box address including order blanks and forms, the legal name of the company soliciting the order, the complete street address of such company and under what conditions a refund will be issued including but not limited to whether a refund will be issued:

(i)

at any time, or not beyond a point in time specified; or

(ii)

in cash, or as credit or in-house credit only. This paragraph shall not apply to a mail-order business that has a policy of accepting returns, for a period of not less than twenty days after the date of delivery of merchandise to the customer and providing a cash refund for a cash purchase or providing a cash refund or issuing a credit for a credit purchase, which credit is applied to the account on which the purchase was debited, in connection with the return of its unused and undamaged merchandise. Provided, however, that nothing contained herein shall prohibit a mail-order business from applying a cash payment for returned merchandise towards a prior outstanding balance. Provided, further, that nothing contained herein shall be deemed to require a cash refund of less than one dollar where the mail-order business provides in-house credit for such sum.

i.

where the seller, due to circumstances beyond his control, is unable to make shipment within the time required by this section, the provisions of paragraphs c and d of this subdivision shall not apply if the seller elects to be governed by this paragraph and does either of the following:

(i)

sends to the buyer a notice of delayed shipment, stating the duration of the expected delay, providing the buyer with the opportunity to express his choice whether to cancel his order and receive a refund, be shipped the merchandise or be furnished the services by a specified later date, or to accept substitute merchandise of equivalent or superior quality. If the seller proposes to substitute merchandise, he shall describe it in detail, indicating how it differs from the goods ordered. The notice shall be sent by first class mail and accompanied by a self-addressed, postage paid device upon which the buyer may indicate his choice, and mailed in advance of the expiration of the thirty day period, or that time stated in the solicitation. The notice shall expressly advise the buyer that the order will be immediately cancelled and a refund forwarded where the buyer does not choose otherwise by response within thirty-five days of the date of mailing by the seller of the above notice. If, prior to shipment, the seller receives a response from the buyer requesting refund, such refund shall be promptly made. If no response is received prior to the expiration of the thirty-five day period after the date of the mailing by the seller of the above notice, the seller shall make a prompt refund.

(ii)

send the customer substitute merchandise of equivalent or superior quality, if the customer is extended the opportunity to return the substituted merchandise and the seller promises to refund to the customer the postage cost of returning such merchandise together with any portion of the purchase price previously paid by the customer. Prior to or at the time of shipment of the substitute merchandise, a notice shall be provided to the customer stating the right to obtain a refund and reimbursement for the postage cost incurred in returning the substituted merchandise. For purposes of subparagraphs (i) and (ii) of this paragraph, merchandise may not be considered of “equivalent or superior” quality if it is not substantially similar to the merchandise ordered, or not fit for the usual purposes for which such merchandise is used, or if the seller normally offers the substituted merchandise at a price lower than the price of the merchandise ordered.

j.

(i) in the case of an order for merchandise placed by telephone or by electronic means, accept an additional fee for expedited mailing or shipping, which is in excess of the lowest charge the seller would accept, in the regular course of business, for mailing or shipping of the merchandise ordered, when the seller does not reasonably expect such merchandise to be mailed or shipped within the next three business days after the order was placed, unless: (A) the seller notifies the buyer, at the time the order is placed but before payment is accepted, that the seller anticipates that the merchandise will not actually be mailed or shipped within the next three business days after the order is placed; or (B) the seller contacts the buyer, by telephone or by electronic means, within the next three business days after the order was placed to inform the buyer: (a) that the mailing or shipping of the merchandise ordered is not reasonably anticipated to occur within the next three business days after the order was placed; (b) of the date the seller reasonably anticipates the merchandise ordered to be mailed or shipped; (c) that, at the buyer’s option, the buyer may: (1) accept the reasonably anticipated delay in mailing or shipping; or (2) cancel the order and refund payment to the buyer within thirty days; or (3) elect to have the merchandise ordered mailed or shipped in the regular course of business and refund the additional fee for expedited mailing or shipping to the buyer within thirty days; and (d) that, if the seller does not receive a response on the next business day, the seller will mail or ship the merchandise ordered, in the manner originally requested by the buyer. Provided, however, that should the buyer contact the seller before the merchandise ordered has been mailed or shipped, nothing in this section shall be construed to preclude the seller from agreeing to any modifications to the buyer’s order which are agreed to by both the buyer and seller.

(ii)

(A) For the purposes of this subdivision, a seller shall be considered to have mailed or shipped a buyer’s merchandise when the seller causes such merchandise, and applicable postage or shipping fee, to be physically placed in the possession of the United States Postal Service or other carrier. Nothing in this section shall impose any liability on the seller for delays solely attributable to the postal service or carrier. (B) A statement or notice contained in the advertising material for the merchandise, in a description of the merchandise, or in a description of the mailing and shipping options available to the buyer, which advises the buyer of the approximate time the seller reasonably anticipates the merchandise to be mailed or shipped, shall satisfy the notification requirements of this section.

4.

Whenever there shall be a violation of this section, an application may be made by the attorney general in the name of the people of the state of New York to a court or justice having jurisdiction to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice that the defendant has, in fact, violated this section, an injunction may be issued by such court or justice, enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding the court may make allowances to the attorney general as provided in section eighty-three hundred three, subdivision six of the civil practice law and rules, and direct restitution. In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules.

Source: Section 396-M — Mail-order or telephone-order merchandise, https://www.­nysenate.­gov/legislation/laws/GBS/396-M (updated Sep. 22, 2014; accessed Jun. 15, 2024).

390
Substitution of spurious oils for internal combustion engines
390‑A
Optical discs
390‑B
Anti-phishing act of 2006
390‑BB
Cramming prohibited
390‑C
Prohibit persons under eighteen years of age in certain facilities
390‑C*2
Posting of warnings by commercial entities offering internet access to the public
390‑D
Information concerning services for human trafficking victims in facilities at truck stops
390‑E
Unauthorized installation of certain security devices prohibited
390‑E*2
Skimming awareness notice
391
Marking retreaded, recapped or recut tires
391‑A
Unlawful acts relating to liquid fuels, lubricating oils and similar products
391‑B
Prohibit any sale of dangerous clothing articles
391‑C
Sale of bicycles
391‑D
Sale of matchbooks
391‑E
Promotion of camps by certain organizations
391‑F
Promotion of private schools by certain organizations
391‑G
Rental of motor vehicles
391‑H
Lubricating oils
391‑I
Sale of urea-formaldehyde foam insulation
391‑J
Sale of fire extinguishers
391‑JJ
Sale of electric space heaters
391‑K
Automatic garage door opening systems
391‑L
Personal emergency response service agreements
391‑L*2
Rental of motor vehicles
391‑M
Manufacture and sale of in-line skates
391‑N
Sale of reptiles
391‑OO
Sale of over-the-counter diet pills and dietary supplements for weight loss or muscle building
391‑P
Prohibit the rental of clothing articles previously worn
391‑Q
Rebates
391‑S
Sale and distribution of novelty lighters prohibited
391‑T
Sale of small animals
391‑U
Pricing goods and services on the basis of gender prohibited
391‑U*2
Restrictions on the sale and use of firefighting equipment containing PFAS chemicals
391‑V
Third-party food delivery agreements
392
Second-hand watches
392‑A
Sale of new computers
392‑B
False labels and misrepresentations
392‑C
Obliteration of marks of origin
392‑D
Using false marks as to manufacture
392‑E
Using false statements or altering mileage registering devices
392‑F
Taximeters
392‑G
Sale of ultraviolet radiation devices
392‑H
Trash receptacles
392‑I
Prices reduced to reflect change in sales tax computation
392‑J
Sales of sparkling devices
393
Lime
393‑A
Non fire rated wood paneling
393‑B
Written solicitation
393‑C
Sale of required labor postings
393‑D
Sale of certified copies of property deeds
393‑E
Sale of abandoned property location services
393‑F
Voluntary third-party notification
394
Lost or destroyed certificate of stock
394‑A
Proof of lost negotiable paper
394‑B
Limitations on certain contracts for instruction or use of physical or social training facilities
394‑C
Limitations on certain contracts involving social referral services
394‑CC
Internet dating safety
394‑CCC
Social media networks
394‑D
Privity of contract between franchise seller and customer or patron of dealer
394‑E
Report on request for abortional services
394‑F
Warrants for reproductive health related electronic data
395
Required disclosure of prior use
395‑A
Maintenance agreements
395‑B
Unlawfully installing or maintaining a two-way mirror or other viewing device
396
Unlawful selling practices
396‑A
Representation by savings and loan association of insurance on accounts
396‑AA
Simulated check
396‑AA*2
Unsolicited telefacsimile advertising
396‑AAA
Public display of tobacco and electronic cigarette advertisements and smoking paraphernalia prohibited
396‑B
Advertisements
396‑BB
Sale of motor fuels to disabled persons
396‑C
Advertisements by persons engaged in dental business relating to dentures and bridges
396‑CC
Notification of enclosure requirements for swimming pools
396‑CC*2
Senior citizen discounts
396‑D
Advertisement and description of real property
396‑DD
Renting of horses
396‑E
Marking articles made of linen
396‑EE
Sale of certain weapons
396‑EEE
Unlawful sale or delivery of body armor
396‑F
Sale of blind made products
396‑G
Sale of products processed by the blind
396‑H
Fraudulent sale of poppies, forget-me-nots, daisies, flags and other articles sold for patriotic purposes
396‑HH
Sale of poppies, forget-me-nots, daisies, flags and other articles for patriotic purposes
396‑I
Acceptance of unexpired gift certificates
396‑J
Sale or possession of master or manipulative keys for motor vehicles
396‑K
Hazardous toys and other articles intended primarily for use by children
396‑K*2
Sale of certain motor vehicles damaged by the ravages of natural disaster
396‑KK
Sale of video game consoles
396‑L
Shopping carts
396‑M
Mail-order or telephone-order merchandise
396‑MM
Unlawful trial offers
396‑N
Sales with “money back guarantee” and with “limited guarantee”
396‑O
Sales by persons offering credits or refunds in certain cases
396‑P
Rates to be posted in taxicabs
396‑P*2
Contracts for the sale of new motor vehicles
396‑Q
New motor vehicles
396‑QQ
New and used motor vehicles
396‑R
Price gouging
396‑RR
Price gouging
396‑S
Individual sewage disposal system
396‑SS
Access number notification
396‑T
Unlawful practices relating to layaway plans
396‑TT
Listing of business location in directory or database
396‑U
Merchandise delivery
396‑V
Operation of public automated blood pressure machines
396‑W
Loitering for the purpose of soliciting passengers for transportation
396‑X
Gasoline stations
396‑X*2
Unauthorized removal or destruction of newspapers
396‑Y
Sale of certain personal property
396‑Z
Rental vehicle protections
397
Unlawful use of name or other identification of certain non-profit organizations
397‑A
Distributing unsolicited advertising on private property prohibited
397‑B
Digital billboards
398
Bills of lading to be issued by vessels transporting merchandise within the state
398‑A
Shipment of motor vehicles outside the continental United States
398‑B
Discrimination in car rentals prohibited
398‑C
Children attending roller skating rinks and indoor ice skating rinks under certain conditions
398‑D
Disposal of abandoned molds
398‑E
Indemnity provision in motor carrier transportation contracts
398‑F
Children’s non-regulated camp
399
Cigarette package labeling
399‑A
Pay toilets
399‑AA
Prohibition of the selling of fur, hair, skin or flesh of a dog or cat
399‑AAA
Selling and manufacturing of fur-bearing articles of clothing
399‑AAAA
Menstrual product labeling
399‑AAAAA
Selling of animal tested cosmetics
399‑B
Contracts for the use of the streets for hack stands
399‑BB
Certain dry cleaning institutions
399‑BBB
Solicitations by container
399‑C
Mandatory arbitration clauses in certain consumer contracts prohibited
399‑CC
Wireless telephone numbers
399‑CC*2
Transcripts and stenographic services
399‑CCC
Smoke detecting devices
399‑CCCC
Wireless telephone services
399‑D
Children attending public bowling alleys under certain conditions
399‑DD
Sale of alcohol vaporizing devices prohibited
399‑DD*2
Construction or installation of playground or playground equipment
399‑DD*3
Consumer communications records privacy
399‑DDD
Confidentiality of social security account number
399‑DDD*2
Disclosure of social security number
399‑E
Prohibition of the importation, manufacturing, distribution, or sale of yo-yo waterball toys
399‑E*2
Actions
399‑EE
Zone pricing of gasoline prohibited
399‑F
Laundromat refund procedures
399‑FF
Petting zoos
399‑GG
Packaging of electronic liquid
399‑H
Disposal of records containing personal identifying information
399‑I
Prohibit the sale of unsafe cribs and restrict use of such cribs in certain settings
399‑II
Furniture tip restraint device
399‑II*2
Prohibit the sale of crib bumper pads and restrict use of such pads in certain settings
399‑J
Safety standards
399‑K
Access to toilet facilities for utility workers
399‑M
Disclosures in advertisement and sale of unassembled goods
399‑N
Approval of electrical devices
399‑NN
Sale of digital electronic equipment
399‑O
Selling prices and container deposits
399‑OO
Deceptive solicitation of vehicle warranty policies
399‑P
Telemarketing
399‑PP
Telemarketing and consumer fraud and abuse prevention act
399‑Q
Use of carts, cases, trays, baskets, boxes and other containers
399‑QQ
Sale or promotional distribution of utility knives, box cutters, or box cart cutters
399‑R
Sale of paint pellet guns
399‑RR
September eleventh victim compensation fund and World Trade Center health program notification
399‑S
Posting of notice when air rifles or guns are sold
399‑T
Sale of certain chlorofluorocarbons and halons prohibited
399‑T*2
Vending machine disclosure
399‑U
Motor vehicle alarms
399‑V
Parking facilities
399‑W
Total loss notice and waiver of the gap amount for non-motor vehicle retail lease agreements
399‑W*2
Notice requirements for renters of personal property
399‑X
Towed motor vehicles
399‑XX
Towing of motor vehicles
399‑Y
Child safety devices for hot water dispensers
399‑Y‑1
Automated teller machines transaction denial
399‑Y*2
Automated teller machine fee disclosure
399‑YY
Cable television company providing telephone services
399‑YYY
Satellite television company providing television and/or telephone services
399‑Z
Telemarketing
399‑Z‑1
Telecommunication companies blocking certain numbers
399‑Z‑1*2
STIR/SHAKEN authentication framework
399‑ZZ
Telephone bills
399‑ZZZ
Prohibition of certain fee charges
399‑ZZZZ
Prohibition of certain fee charges for termination or early cancellation
399‑ZZZZZ
Broadband service for low-income consumers
399‑ZZZZZ*2
Use of preferred name and pronouns

Accessed:
Jun. 15, 2024

Last modified:
Sep. 22, 2014

§ 396-M’s source at nysenate​.gov

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