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Receipt of Unsolicited Products or Services

June 21, 2019 4377

Instructions for the Dental Practice

Did you receive products you did not order, and then were invoiced for them? Have you received an invoice for advertising you did not order? Use this sample letter to notify the company that state and federal law allow you, the recipient, to use or dispose of the product in any manner you see fit and that you may take action, as allowed by law, if the company continues to seek payment for the product or unsolicited service.

Although you are not obligated to notify the sending company, sending a letter is likely the fastest way to put a stop to the company’s practice. Be sure to retain a copy of the letter you send. If the company asks for the return of the product, you may agree to do so as long as the company pays for all shipping costs.

If a company continues to send invoices for the product after you have sent the letter, you may file formal complaints with the Federal Trade Commission and the California Office of the Attorney General.

The Postal Reorganization Act, 39 U.S.C. section 3009 – Mailing of unordered merchandise

  1. Except for (1) free samples clearly and conspicuously marked as such, and (2) merchandise mailed by a charitable organization soliciting contributions, the mailing of unordered merchandise or of communications prohibited by subsection (c) of this section constitutes an unfair method of competition and an unfair trade practice in violation of section 45(a)(1) of title 15.
  2. Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender.
  3. No mailer of any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, shall mail to any recipient of such merchandise a bill for such merchandise or any dunning communications.
  4. For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. (Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 749.)

California Civil Code section 1584.5

No person, firm, partnership, association, or corporation, or agent or employee thereof, shall, in any manner, or by any means, offer for sale goods, wares, merchandise, or services, where the offer includes the voluntary and unsolicited sending or providing of goods, wares, merchandise, or services not actually ordered or requested by the recipient, either orally or in writing. The receipt of any goods, wares, merchandise, or services shall for all purposes be deemed an unconditional gift to the recipient who may use or dispose of the goods, wares, merchandise, or services in any manner he or she sees fit without any obligation on his or her part to the sender or provider.

If, after any receipt deemed to be an unconditional gift under this section, the sender or provider continues to send bill statements or requests for payment with respect to the gift, an action may be brought by the recipient to enjoin the conduct, in which action there may also be awarded reasonable attorney's fees and costs to the prevailing party.

For the purposes of this section and limited to merchandise or services offered for sale through the mails, the "voluntary and unsolicited sending or providing of goods, wares, merchandise, or services not actually ordered or requested by the recipient, either orally or in writing," includes any merchandise or services selected by the company and offered to the consumer which will be mailed to him or her for sale or on approval or provided to him or her unless he or she exercises an option to reject the offer of sale or receipt on approval. Merchandise or services selected by the seller and offered for sale on a periodic basis must be affirmatively ordered by a statement or card signed by the consumer as to each periodic offer of merchandise or services. This paragraph shall not apply to any of the following:

  1. Contractual plans or arrangements complying with this subdivision under which the seller periodically provides the consumer with a form or announcement card which the consumer may use to instruct the seller not to ship the offered merchandise. Any instructions not to ship merchandise included on the form or card shall be printed in type as large as all other instructions and terms stated on the form or card. The form or card shall specify a date by which it shall be mailed by the consumer (the "mailing date") or received by the seller (the "return date") to prevent shipment of the offered merchandise. The seller shall mail the form or card either at least 25 days prior to the return date or at least 20 days prior to the mailing date, or provide a mailing date of at least 10 days after receipt by the consumer, except that whichever system the seller chooses for mailing the form or card, the system must be calculated to afford the consumer at least 10 days in which to mail his or her form or card. The form or card shall be pre-addressed to the seller so that it may serve as a postal reply card or, alternatively, the form or card shall be accompanied by a return envelope addressed to seller. Upon the membership contract or application form or on the same page and immediately adjacent to the contract or form, and in clear and conspicuous language, there shall be disclosed the material terms of the plan or arrangement including all of the following:
    1. That aspect of the plan under which the subscriber must notify the seller, in the manner provided for by the seller, if he or she does not wish to purchase or receive the selection.
    2. Any obligation assumed by the subscriber to purchase a minimum quantity of merchandise.
    3. The right of a contract-complete subscriber to cancel his or her membership at any time.
    4. Whether billing charges will include an amount for postage and handling.
  2. Other contractual plans or arrangements not covered under subdivision (a), such as continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive the merchandise on a periodic basis.
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