When 'free' merchandise isn't
Lawsuit targets publisher's 'negative option' policy


By CANDACE HECKMAN
SEATTLE POST-INTELLIGENCER REPORTER

Tuesday, January 31, 2006

If her 3-year-old daughter didn't love Barbie so much, Carly Alcombrack would have just tossed aside a postcard that promised a free Barbie book and backpack from Scholastic at Home.

With husband John Hart in the background, Carly Alcombrack plays with her daughter, Jahdai, in their Bellevue home. Jahdai's love for Barbie started the trouble.
A year later, she wishes she had chucked it, anyway.

After being bombarded by unwanted book shipments and invoices ordering her to pay for them, Alcombrack now wonders if the world's largest publisher and distributor of children's books got so big by pushing its products on consumers who didn't want or ask for them.

She and her husband, John Hart, are suing Scholastic in federal court, claiming that the company violates Washington's unsolicited goods and consumer-protection laws, as well as similar laws in more than a dozen other states.

Believing that thousands of other consumers have had similarly frustrating experiences, the couple are seeking class-action status for the lawsuit, which was filed Monday in U.S. District Court in Seattle.

Scholastic spokeswoman Kyle Good said that neither she nor the company's legal team knew about the lawsuit and could not comment. Good also declined to comment on Scholastic's home book club or the marketing practices of that part of the company.

Free is free, or so Alcombrack thought about Scholastic's offer at the time. So, she filled out the card that fell into her lap from a Barbie book she and her daughter were reading at a doctor's office.

But after receiving the book and backpack, Alcombrack started getting more book shipments. She wrote a big "Return to Sender" on the packages with a black marker.

She spoke -- and argued -- constantly on the phone with Scholastic's customer service representatives after the company began billing her for the packages she'd returned.

She told them to stop calling. They didn't.

She told them to stop sending books. Instead, they started sending encyclopedias addressed to her husband.

"I just assumed Scholastic was a company we could trust," she said.

After the first couple of months, Alcombrack mulled this dilemma: If she paid for the books, Scholastic and other companies likely would bombard her Bellevue mailbox with more books, as well as additional offers for other products. If she continued to refuse delivery and refuse to pay the bills, the company might ruin her credit.

She elected the latter while consulting a lawyer and family friend.

"She wasn't the lone ranger among the moms," said Simeon Osborn, Alcombrack's lawyer, who is also her son's football coach. "They were there on the sideline. They were all talking about 'the same thing happened to me.'

"They said, 'Hey, Sim, what do you think?' " Osborn explained. His response was, " 'Well, I can't tell you offhand, but I know that's got to be wrong.' "

At that point, Scholastic had been going after Alcombrack and Hart for most of a year and had just threatened to send the account, addressed with their tot's name, for collection.

"I felt like my daughter's credit would be in jeopardy at 3 years old," Alcombrack said, adding that she has felt a kind of "Mommy's guilt" over the situation.

"We all grew up with Scholastic. They are really thought of as educational," said Susan Linn, a professor at Harvard Medical School and co-founder of the Campaign for a Commercial-Free Childhood.

But, "they are a company that is living off a reputation they no longer deserve of being good for children."

Linn said that most parents and teachers do not realize that Scholastic has changed. In the 1990s, the company began getting more aggressive in its marketing and commercial in its offerings. Scholastic's offerings now include videos, CDs and toys, not only through direct home marketing, but at its school-based book fairs.

Scholastic is just one on a long list of companies that are using children to manipulate parents into buying consumer goods, Linn said.

Take the Barbie & Friends Book Club. It offers books, but it also promotes toys -- and a product that has not been without controversy among child psychologists.

Alcombrack said that because her daughter loves Barbie so much, it was difficult for her and her husband to say "no." It has been equally difficult to tell their other children that they will not order books from the Scholastic order form the children take home from school once a month.

The couple end up taking their six children, ages 1 to 11, to the bookstore, instead. And they are not the first to complain about or boycott the company over its business practices.

In 2004, Scholastic agreed to a monetary penalty with the Missouri Attorney General's Office after an investigation found the company sending unsolicited goods and billing consumers for them. Scholastic's home book services are based in Missouri.

Then last June, Scholastic paid the Federal Trade Commission a $710,000 civil penalty for confusing consumers targeted by telephone and direct marketing campaigns for its "negative option" programs, which require consumers to tell the company when they do not want a product.

Scholastic's Good said she would have to find out how the company has responded to the government action and would not comment Monday on the company's book-club practices.

Scholastic and its subsidiaries have also generated hundreds of complaints in the past three years to the Better Business Bureau, through various regional BBB offices, which provide their statistical reports online.

Alcombrack did not keep a copy or a duplicate of the card she filled out, but she said that she read the offer carefully, and it did not obligate her to buy anything for receiving the book and backpack.

A similar offer on Scholastic's Web site reads, "Join now to receive your child's three Free Barbie & Friends Books and FREE mini Backpack. Plus you'll receive a trial book to preview FREE for seven days.

"If not 100% satisfied, simply return your trial book at our expense within seven days and owe Scholastic nothing. The three FREE books and FREE mini backpack are yours to keep no matter what you decide."

The offer goes on to explain that keeping the trial book would cost $3.99 and the consumer would be obligated to accept at least eight books for $4.99 a book, after which the consumer could cancel the membership.

Although that kind of "negative option" marketing is not illegal per se, "Those who engage in it bear a pretty substantial burden of proving consumers were duly informed," said David Huey, a senior assistant state attorney general in Washington who specializes in consumer protection law. "Negative option has (for) a long time been the bane of consumer protection."