Section 6: Distance Selling (Mail Order, Direct Response and Online Selling)
This Section sets out the rules governing transactions for goods or services in which the consumer and the advertiser, having been brought into communication through a marketing communication, conduct their business without meeting face-to-face. In this Section of the Code (and only this Section) “consumer” does not include those acting in the course of their business.
In the case of mail order and direct response marketing communications:
(a) the name and full address of the advertiser should be included in the marketing communication (in the case of a print marketing communication this should be separate from any response coupon),
(b) appropriate arrangements should be in place for enquirers to be informed by media of the name and full address of the advertiser.
A separate address for orders may also be given. This need not be a full address but may be Freepost or a Box Number.
Distance selling marketing communications should:
(a) Include the main characteristics of the products.
(b) Specify the price, including any VAT, taxes payable, and other inescapable costs to the consumer, and should include details of any applicable delivery costs and payment arrangements.
(c) Provide information on how to access the advertiser’s details if the offer is sent by Short Message Service (SMS) or other electronic delivery system and it is not possible for all details to be included in the communication.
Orders should be fulfilled within 30 days, subject to the following exceptions/limitations:
(a) Where security is provided for purchasers’ money through an independent scheme.
(b) In the case of goods such as plants and made-to-measure products, where the estimated time of delivery should be made clear.
(c) Where a series of goods is to be dispatched in sequence. In such cases, only the first delivery need be made within 30 days but the period within which subsequent deliveries will be made should be made clear at the outset.
Goods supplied should conform to any relevant and accepted standard and to the description given in the marketing communication.
Advertisers should refund all money promptly (and at the latest within 30 days of notice of cancellation being given) when:
(a) Consumers have not received their goods or services. If they prefer to wait, consumers should be given a firm dispatch date or fortnightly progress reports.
Alternatively, advertisers may, if asked, provide a replacement.
(b) Goods are returned because they are damaged or faulty or are not as described, in which case the advertisers should bear the cost of their return, provided that the consumer gives notice within a reasonable period of time.
(c) Consumers cancel within fourteen clear working days after delivery (subject to the requirements in 6.7); consumers should assume that they can try out goods, unless the marketing communication says otherwise. Such goods, nevertheless, should be returned undamaged.
(d) An unconditional money-back guarantee is given and the goods are returned within a reasonable period.
(e) Goods that have been returned are not received back, provided consumers can produce proof of posting.
If the consumer exercises their right of cancellation in respect of goods which are not damaged or faulty, they shall not incur any charges or penalties for so doing, except the direct cost of returning the goods.
Advertisers do not have to provide a full refund on:
(a) Perishable, personalised or made-to-measure goods, provided all contractual and statutory obligations to the consumer are met.
(b) Goods that can be copied, unless they fall under 6.5 (a), (b) or (c), with the exception of audio or video recordings or computer software if unsealed by the consumer.
(c) Betting, gaming or lottery services provided all contractual and statutory obligations to the consumer are met.
When an advertiser offers to supply goods on approval, the consumer will be expected (subject to 6.5 (b) above) to bear the cost of return of unwanted goods unless the advertiser has undertaken to refund such costs.
If the consumer exercises their right of cancellation as listed above, the advertiser shall be obliged to reimburse any sums paid by the consumer without deduction of costs, interest or penalties (other than the direct cost of returning any goods). However, unless there is agreement between the advertiser and the consumer to the contrary, the consumer may not exercise the right of cancellation referred to above in respect of a distance contract:
(a) For the provision of services if performance has begun, with the consumer’s agreement, before the end of the cancellation period referred to in the preceding paragraphs.
(b) For the supply of goods and services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier.
Advertisers should be in a position to meet any reasonable demand created by their advertising. If an insufficient quantity of a product proves to be available, advertisers should take immediate action to ensure that any further marketing communications are amended or withdrawn.
If advertisers intend to call on respondents personally, this should be made clear in the marketing communication or in a follow-up letter. Advertisers should provide a reply-paid postcard or telephone or email contact to allow consumers an adequate opportunity to refuse a home visit.
Advertisers, when using media primarily targeted at children, should not promote products that are unsuitable for children.
Goods, and, where applicable, samples should be packaged in such a way as to be suitable for delivery to the customer. Particular care should be taken when packaging products that may fall into the hands of children.
Advertisers should not imply that consumers have already ordered the marketed product when they have not done so and, in particular, they should not include in marketing material an invoice or similar document that seeks payment.
Advertisers should not ask consumers to pay for, or return, unsolicited products, except for substitute products.
Advertisers should be aware that media may, in respect of cash-with-order marketing communications, require special undertakings over and above the requirements set out in this Section. Media may also require undertakings that advertisers have adequate arrangements to handle all orders efficiently.
Other Regulatory Requirements
Attention is drawn to the requirements of the Data Protection Acts, 1988
and 2003, and the ePrivacy Directive (S.I. No. 336/2011) in regard to the
collection, processing, keeping, use, and disclosure of personal data.
EU Legislation Regarding Distance Contracts
Attention is also drawn to the requirements of European Union (Consumer Information, Cancellation and other Rights) Regulations, 2013 (S.I. No. 484/2013).