--- title: "Can you put a free gift or substitute in an order?" description: "Federal law lets you mail free samples clearly marked as such. Unmarked extras are unordered merchandise the buyer can keep. Substitutes need consent first." canonical: https://resellerindex.com/seller-laws/unordered-merchandise-free-gifts/ last_updated: 2026-10-23 publisher: "The Reseller Index" --- # Can you put a free gift, extra or substitute in a buyer's box? A free gift is fine under federal law if it is clearly and conspicuously marked as a free sample or gift, but anything else you mail without the buyer's prior request or consent is "unordered merchandise" that the buyer may keep as a gift, and you can't bill them or send dunning letters for it (39 U.S.C. 3009). For a substitute shipped in place of what was ordered, the FTC adds that you need the buyer's express agreement first if it is materially different, such as a different design, style, color or fabric, or any feature your listing mentions or shows (for a book, the edition). General information about federal law, not legal advice. This page quotes the rule and the agency's own guidance; it can't tell you whether your business meets them, and state law and marketplace policies can add more. For your own situation, check with a lawyer. Unordered merchandise (39 U.S.C. 3009). Checked against the official sources below on Oct 23, 2026. ## The rule, in its own words > “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…” 39 U.S.C. 3009(a). [United States Code, 2024 edition (GPO, govinfo.gov)](https://www.govinfo.gov/content/pkg/USCODE-2024-title39/html/USCODE-2024-title39-partIV-chap30-sec3009.htm); United States Code, 2024 edition. > “…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.” 39 U.S.C. 3009(b). [United States Code, 2024 edition (GPO, govinfo.gov)](https://www.govinfo.gov/content/pkg/USCODE-2024-title39/html/USCODE-2024-title39-partIV-chap30-sec3009.htm); United States Code, 2024 edition. > “…means merchandise mailed without the prior expressed request or consent of the recipient.” 39 U.S.C. 3009(d), defining "unordered merchandise". [United States Code, 2024 edition (GPO, govinfo.gov)](https://www.govinfo.gov/content/pkg/USCODE-2024-title39/html/USCODE-2024-title39-partIV-chap30-sec3009.htm); United States Code, 2024 edition. > “Unless the customer expressly agrees to the substitution beforehand, you do not have the option of substituting merchandise that is materially different from your advertised merchandise.” FTC Business Guide to the Mail Order Rule, "Substitutions". [Federal Trade Commission](https://www.ftc.gov/business-guidance/resources/business-guide-ftcs-mail-internet-or-telephone-order-merchandise-rule); September 2011, edited January 2025. ## What the statute says, piece by piece - **Unordered merchandise** is anything mailed without the recipient's prior expressed request or consent (3009(d)). An unmarked extra item in an order is unordered: the buyer asked for the book, not the bookmark. - **Mailing it is an unfair trade practice** under the FTC Act, except for clearly marked free samples and charities' mailings (3009(a)). - **The buyer may keep it** and do anything with it, with no obligation to you (3009(b)). - **You can't bill or dun** the recipient for it (3009(c)). - **The gift notice.** 3009(b) also says such merchandise, including items "within the exceptions", "shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift". A short note on the freebie covers both the marking and the notice. The FTC reads the prohibition beyond the Postal Service. Its Mail Order Rule guide says it is unlawful to "Send any merchandise by any means without the express request of the recipient (unless the merchandise is clearly identified as a gift, free sample, or the like)", or to try to get payment for it or its return. Sample wording (ours, not an official form) **Free gift, with thanks.** This is yours to keep, use or give away as you like. No payment and no return needed. ## Common situations *How 39 U.S.C. 3009 and the FTC's Mail Order Rule guidance apply. Not legal advice for a specific dispute.* | What you send | Unordered? | What the sources say | | --- | --- | --- | | A bookmark with a book order, with a card saying it is a free gift to keep | No, it is a free sample clearly and conspicuously marked as such | Allowed under the 3009(a) exception, and the card gives the 3009(b) gift notice. | | An extra item tossed in with no note | Yes | The buyer may keep it and owes you nothing. Usually harmless, but you can't later ask to be paid for it. | | A different edition because the one listed was missing, without asking | The substitute was mailed without consent | The FTC says a materially different substitute needs the buyer's express agreement beforehand; otherwise offer a delay or a refund. | | A substitute the buyer agreed to by message before you shipped | No, there was prior consent | Fine under both 3009 and the Mail Order Rule; keep the message. | | An item mailed to someone who only asked “is this available?” | Yes | There was no request for the merchandise itself. You can't bill for it (3009(c)). | | Goods "on approval" with an invoice | Only if the buyer didn't agree beforehand | The FTC says any approval sale needs the customer's prior express agreement to receive the merchandise. | ## When you ship the wrong item by mistake The statute defines unordered merchandise by the recipient's request or consent and has no exception for a seller's mix-up. Neither 3009 nor the FTC guidance we read says how an honest packing mistake is treated, and state law may also bear on it, so this is a question for a lawyer if the item is valuable. What the sources do settle: - You still owe the buyer what they ordered: ship it, or follow the delay-or-refund steps in the [Mail Order Rule](https://resellerindex.com/seller-laws/ftc-shipping-delay-notice/). - If the wrong item counts as unordered merchandise, 3009(c) bars sending a bill or "dunning communications" for it. A polite request, with a prepaid return label, isn't a bill, but these sources don't draw that line. - Writing things down helps both sides. In a 2014 post about unordered-goods scams, the FTC told recipients that "If there’s been an honest mistake, sorting it out in writing still gives the vendor plenty of opportunity to explain what happened." ## Edge cases - **Not only the mail.** 3009 speaks of mailing, but the FTC's guide applies the prohibition to merchandise sent "by any means", and adds that "Using the U.S. mails to ship unordered merchandise also violates the Postal laws." - **Charities** may mail merchandise while soliciting contributions (3009(a)(2)); the recipient may still keep it as a gift. - **Free trials that turn into charges** are a separate FTC concern about negative options, and not what this page covers. - **Promotional extras with conditions,** such as “keep this sample and we’ll bill you if you don’t return it”, are exactly what 3009 forbids. ## What to do 1. Mark every freebie clearly as a free gift the buyer can keep. 2. Before sending a substitute, ask the buyer and wait for a yes; if they say no, refund or offer a delay. 3. Never invoice for an extra or a substitute the buyer didn't agree to. 4. If you ship the wrong item, send the right one or refund, and ask (don't demand) for the wrong one back with a prepaid label. ## Penalties, as the agency states them The FTC's Mail Order Rule guide states the risk this way: > “Merchants who ship unordered merchandise with knowledge that it is unlawful to do so can be subject to civil penalties of up to $53,088 per violation.” FTC Business Guide, "Unordered Merchandise". [Federal Trade Commission](https://www.ftc.gov/business-guidance/resources/business-guide-ftcs-mail-internet-or-telephone-order-merchandise-rule); September 2011, edited January 2025. ## Questions ### Can a buyer keep a free gift I sent? Yes. A clearly marked free sample is within the 3009(a) exception, and 3009(b) says merchandise within the exceptions may also be treated as a gift by the recipient. ### Can I ask a buyer to pay for an extra item they liked? Not with a bill or dunning messages: 3009(c) forbids both for unordered merchandise. You can offer to sell it to them in a new order they agree to. ### Does this apply to items sent by UPS or FedEx? 39 U.S.C. 3009 is written about mailing. The FTC's guide says sending merchandise "by any means" without the recipient's express request is unlawful unless it is clearly identified as a gift or free sample. ## Related questions - [What must a shipping delay notice say under the FTC rule?](https://resellerindex.com/seller-laws/ftc-shipping-delay-notice/) Before your deadline, offer the buyer a choice: accept the delay or cancel for a prompt refund. Silence counts as consent only for a new date 30 days or less out. - [Does the FTC 30-day shipping rule apply to online resellers?](https://resellerindex.com/seller-laws/ftc-30-day-shipping-rule/) Yes. Ship within the time your listing states, or 30 days if it states none; "shipped" means in the carrier's possession, not a printed label. - [Can you give buyers a discount or freebie for a review?](https://resellerindex.com/seller-laws/ftc-review-rule-incentives/) Not for a positive one. An incentive for any honest review isn't banned by the rule, but disclose it; “5 stars for 10% off” is exactly what 16 CFR 465.4 forbids. Also on this site: [USPS for resellers](https://resellerindex.com/usps/) [All 14 federal rule questions for online resellers](https://resellerindex.com/seller-laws/) ## Sources Every rule, number and date on this page comes from these official pages, each read on Oct 23, 2026; quotes are copied word for word. General information, not legal advice. - [39 U.S.C. 3009: mailing of unordered merchandise](https://www.govinfo.gov/content/pkg/USCODE-2024-title39/html/USCODE-2024-title39-partIV-chap30-sec3009.htm) (United States Code, 2024 edition (GPO, govinfo.gov); United States Code, 2024 edition) - [FTC: Business Guide to the FTC's Mail, Internet, or Telephone Order Merchandise Rule](https://www.ftc.gov/business-guidance/resources/business-guide-ftcs-mail-internet-or-telephone-order-merchandise-rule) (Federal Trade Commission; September 2011, edited January 2025) - [FTC Business Blog: The law on unordered merchandise](https://www.ftc.gov/business-guidance/blog/2014/10/law-unordered) (Federal Trade Commission; Oct 1, 2014) - [FTC Consumer Advice: What To Do if You're Billed for Things You Never Got, or You Get Unordered Products](https://consumer.ftc.gov/articles/what-do-if-youre-billed-things-you-never-got-or-you-get-unordered-products) (Federal Trade Commission; August 2022) Subscribe: https://resellerindex.com/subscribe/ Want these numbers next to your own sales? The Profit Toolkit, $29 once (our own product) One Excel workbook you own: the fee calculators for 7 platforms (not TikTok Shop), USPS Media Mail and Ground Advantage tables, a minimum-price builder, a profit log and a monthly P&L. Instant download; refund within 30 days if it doesn't help. [Buy the Toolkit: $29](https://buy.stripe.com/fZudR97YV8ZB3YL05ogjC03) [See what's inside](https://resellerindex.com/toolkit/) --- The Reseller Index Researched and drafted with AI assistance from each platform's and carrier's own published pages. A full-time reseller runs The Reseller Index and will edit every newsletter issue once the newsletter starts. Every number links to its source and carries the date we checked it. Spot an error? [Tell us](https://resellerindex.com/corrections/) and we'll fix it in the public corrections log. General information, not tax, legal or financial advice. Not affiliated with or endorsed by eBay, Amazon, Mercari, Poshmark, Depop, Whatnot, Etsy, TikTok Shop, USPS, the IRS or the software companies whose prices we track; their names belong to them. Each page shows the date its own rates were last checked. Sponsored placements are always labeled "Sponsored". © 2026 The Reseller Index. No trackers, no ad cookies.