[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR18.3]

[Page 138]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 18_GUIDES FOR THE NURSERY INDUSTRY--Table of Contents
 
Sec. 18.3  Substitution of products.

    With respect to industry products offered for sale by an industry 
member, it is an unfair or deceptive act or practice for any member of 
the industry:
    (a) To ship or deliver industry products which do not conform to 
representations made prior to securing the order or to specifications 
upon which the sale is consummated, without advising the purchaser of 
the substitution and obtaining the purchaser's consent thereto prior to 
making shipment or delivery, where failure to advise would be misleading 
to purchasers; or
    (b) To falsely represent the reason for making a substitution: 
Provided, however, That nothing in this section is intended to inhibit 
the shipment of products different from those ordered, prior to 
obtaining the purchaser's consent to such substitution, when the order 
is received by the industry member near the close of the planting season 
for the products ordered and the substitution involved relates but to a 
product or products the total price of which is comparatively small, and 
when:
    (1) At the commencement of the planting season for the products 
ordered the industry member had a supply of such products sufficient to 
meet normal and reasonably expected orders therefor, and such supply has 
been exhausted; and
    (2) The products substituted are of similar variety and of equal or 
greater value to those ordered by the purchaser and no additional charge 
is made therefor; and
    (3) Notice of the substitution, with adequate identification of the 
substituted item or items, and with commitment of the industry member to 
refund any purchase price received for the substituted products if such 
products are not acceptable to the purchaser and to compensate the 
purchaser for any expense involved in the return of the substituted 
products if refund is conditioned on the return thereof, is given the 
purchaser at the time of his receipt of such products: And provided 
further, That nothing in this section is to be construed as sanctioning 
the dissemination of an advertisement of an industry product or products 
or the personal solicitation of orders therefor unless at the time of 
such dissemination or solicitation the industry member has a supply of 
such product or products sufficient to meet normal and reasonably 
expected orders therefor. [Guide 3]

[44 FR 11177, Feb. 27, 1979, as amended at 59 FR 64549, Dec. 14, 1994]