We Want to Sell by Mail or Telephone a Product that is Not Yet Available, Does the Rule Apply?
According to the Mail, Internet, or Telephone Order Merchandise Rule, it depends. In an advisory opinion, the FTC told a publishing company that it could "dry-test" its merchandise as long as the following conditions were met:
• In promoting the merchandise, the merchant can make no suggestion that the merchandise will be shipped or that customers expressing an interest in it will receive it.
• In all promotional materials, the merchant must disclose all material aspects of the promotion, including the fact that the merchandise is only planned and may not be shipped.
• If any part of the promotion is later dropped, the merchant must notify subscribers of the fact within a reasonable time after soliciting their subscriptions.
• If, within a reasonable time after soliciting their subscriptions, the merchant has made no decision to ship the merchandise, it must notify subscribers of this fact and give them the opportunity to cancel and, where payment has been made, make a prompt refund.
• The merchant can make no substitutions of any merchandise for that ordered.
If these conditions are not met, the Rule applies.
For more information, see here: http://business.ftc.gov/documents/bus02-business-guide-mail-and-telephone-order-merchandise-rule
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