Tony bought a Tempur-Pedic mattress from healthyback.com last December, and they sent him two pillows as a “free gift.” Tony didn’t want the pillows, but HealthyBack refused to take them back, and assured him they were part of a promotion.

When he tried to return the mattress, HealthyBack charged him $120 for the non-returnable pillows.

Tony wrote the following email to the CEO of HealthyBack earlier today:

Dear Mr. Mazlish:

In December 2008, I ordered a Tempur-Pedic mattress from healthyback.com.

I didn’t like it and returned it within 90 days as per your return policy.

Your company deducted its return shipping charge of $179 from the amount they refunded me. That’s fine.

They also deducted another $120 or so for two pillows that they had thrown in for free — they had a promotion where they were throwing in two pillows with every Tempur-Pedic mattress order at that time.

I called to complain about that and they referred me to the “Gift with purchase items” section buried in your return policy page: http://www.healthyback.com/90day_comfort_guarantee.htm (scroll down, way down)

I would be happy to return the pillows — unopened, in the darn box your company shipped them in — but various employees, including people named “Lianna,” “Carmen,” and “Kharisma Knepshield,” informed me that since the pillows were a “gift” (a gift which I am now paying money for), they were not eligible for return. Sometimes these employees told me it was a “sanitary issue.” When I informed them that the pillows remain unopened, suddenly it was no longer a “sanitary issue” — but just company policy.

I have these questions for you.

• 1. As Healthyback’s CEO, were you aware of this practice?
• 2. Do you see how to send something unordered to a customer and then retroactively charge the customer for it — and refuse a return — appears to be a scam?
• 3. Why does your company insist on using the term “gift” for things that your company charges money for?
• 4. Kharisma Knepshield told me that it was “standard industry practice” for mattress companies to include “gifts with purchase” and then charge for these “gifts.” Do you agree? If so, what are some other companies that do this?

Thank you for your time.

We hope HealthyBack’s CEO gets back to you, Tony, but in the meantime you should familiarize yourself with the FTC’s “Mail Order or Telephone Order Merchandise Rule,” which also applies to Internet purchases:

Unordered Merchandise

Whether or not the Rule is involved, in any approval or other sale you must obtain the customer’s prior express agreement to receive the merchandise. Otherwise the merchandise may be treated as unordered merchandise. It is unlawful to:

1. 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,

2. Try to obtain payment for or the return of the unordered merchandise.

Merchants who ship unordered merchandise with knowledge that it is unlawful to do so can be subject to civil penalties of up to $11,000 per violation. Moreover, customers who receive unordered merchandise are legally entitled to treat the merchandise as a gift. Using the U.S. mails to ship unordered merchandise also violates the Postal laws.

You might want to send another email to that CEO and let him know that you’re aware of this rule even if he isn’t, and that you will report him to the FTC and your states’ Attorneys General, as well as request a chargeback, if he doesn’t have his reps immediately reverse the $120 charge. You can probably phrase it more politely than that, of course, but don’t forget that you’ve got the law on your side. All Anthony Mazlish has on his side is a scam for penalizing customers who, in good faith, take him up on his return policy.

Update: It looks like Tony may be stuck paying for the pillows after all, according to reader Michael Belisle who checked out the fine print. This doesn’t make it any less a scam, but the FTC rule likely will not work if Tony knew about the pillows before they were sent, and if HealthyBack notes that they’ll charge for a return.

If you order a mattress and the company insists on throwing freebies in with it, be sure to check the fine print before you accept the order, or else you could find yourself in possession of a couple of fluffy “return policy insurance” pillows designed to screw you out of some extra cash should you return the mattress.

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