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The “Novelty Purposes Only” Excuse

When we tell people the reasons why we don’t carry certain sex toys (for example, the serious health risks associated with  soft vinyl dildos) we’re often asked “but how can those other stores get away with selling it?”. The simple answer is that they're not selling you a sex toy, they're selling you a "novelty item" so the fact that the item isn’t suitable for sexual use is irrelevant to them and to your legal rights as a consumer.

The use of a “novelty purposes only” designation to excuse away poor quality sex toys has a legal historical context dating back centuries to the evolution of commercial transaction law (often referred to as “sales of goods” law). Commercial transaction law sets up rules to protect both the seller and the purchaser in a sales of goods situation. Aside from express representations made by the seller to the purchaser, the law imposes a number of implied conditions on the sale of goods. Two of these implied conditions are of particular relevance to the purchase of sex toys and the “novelty purposes only” excuse used so frequently by sellers of sex toys. The first condition is called the “implied condition of merchantable quality” and the second condition is called the “implied condition of suitability for a particular purpose”. The merchantable quality condition applies to most sex toy purchases in the mainstream industry while the suitability for a particular purpose condition is more likely to apply only where sex toys are purchased from the boutique or women’s branch of the industry.

Here’s how it works ...  Under the first implied condition, a sex toy purchaser has recourse against a vendor if a vendor sells goods that are not of merchantable quality, because the law specifies this standard as a condition of sale. Recourse means, for instance, that if the sex toy isn’t of merchantable quality, the purchaser has a right to a refund even if the store policy is “no refunds”. There are two tests to determine if a particular good (i.e. a Cyberskin porn star look-a-like dildo) is of merchantable quality. The first test is the “fitness for purpose” test. Seems straight forward enough, doesn’t it? Like so many legal concepts, though, there’s a catch. The fitness for purpose doesn’t have to be the purpose that the purchaser had in mind. It just has to be a purpose. Thus, a product that has any purpose will suffice to satisfy the test. Basically, where goods have more than one normal use and they are reasonably fit for one or more of their normal purposes, they will be merchantable, even though not fit for the purchaser’s particular purpose. So, in the case of the Cyberskin dildo, one normal use is to use a big realistic looking schlong to humiliate the recipient at a stagette party. A “novelty purpose” commonly understood in the mainstream sex toy industry and by society at large. You know, you open up the gift, a big dong falls out, and everyone has a laugh. It doesn’t matter that the purchaser thought that the dildo would be suitable for sexual uses, such as vaginal penetration, only to discover that the material it's made of isn’t healthy for use. The joke use is all that the vendor needs to establish to defend the sale.

In most cases, the second test to determine merchantable quality won’t assist the disgruntled purchaser either. This test is called the “price acceptability test” .The dildo is merchantable if a reasonable purchaser, knowing of all the defects (latent and patent) would nonetheless accept the goods without abatement of the price. Since the mainstream sex industry price for goods ranges from cheap for trashy, splashy “novelty” packaging to expensive for trashy, splashy porn-star endorsed “novelty” items, the standard pricing is understood to relate to the novelty value of the dildos (it’s more expensive if it’s more embarrassing - a hyper-realistic over-sized dildo costs more than a toned-down version) not to the quality. A gross dildo can be grossly overpriced ( if the test were one of quality) because the test is instead whether the price is fair for the over the top novelty value gained from the gross-out embarrassment factor. Since the mainstream industry standard is to sell sex toys of the lowest quality, the threshold for purchaser expectations is low and easily met. Poor quality (indeed, outright dangerous) sex toys are of merchantable quality because trash always has a novelty value.

The second implied condition (suitability for a particular purpose) rarely applies to a sale of sex toys. So, even though it’s a condition of sales of goods in general, it is a condition of sale that a mainstream sex toy seller is likely to never have to meet because this condition requires a purchaser to make a disclosure of a particular purpose and to demonstrate reliance on the seller. In most sex shops, the “novelty purposes only” sticker is prominently displayed on the packaging, the shop offers no guidance in making purchases beyond the “this is really popular” variety, purchasers rush in and out, lingering for as short a time as possible and avoiding any discussion about what they’re looking for, and the products, displays, packaging, and stores themselves are presented in a tacky, "this is all just a joke" sort of way. To rely on the condition of suitability for a particular purpose, the purchaser has to have made known to the seller the particular purpose (i.e. in our dildo example, the purpose is for vaginal or anal penetration for sexual pleasure) for which the goods are required so that the purchaser is known to be relying on the seller's skill or judgment. If a purchaser is too shy or embarrassed to mention the particular use and if a seller sets up their display of goods (indeed, their entire business) without any offering of skill or judgment, there is no disclosure nor reliance. The interesting result of this test is that the shoddier, sleazier, and more novelty the approach of the vendor, the less likelihood that this condition will ever apply to protect a purchaser. Sex toy sellers who make an effort to entertain a purchaser's questions about suitable products for vaginal or anal use and to provide product information specific to sexual use attract the condition. Thus, boutique sex toy sellers ought to either draw a clear distinction between what they sell for novelty use and what they sell for sexual use (i.e. a Cyberskin 9 inch by 2 inch schlong for novelty and a silicone 7 x 1 1/4 dildo for anal or vaginal penetration) or they should decide what side of the sex toy industry they stand on - the "novelty purposes only" or the "suitable for sexual purposes" side. If a vendor indicates that they are offering more than just novelty products, they need to do so, and the purchaser has a right to rely on the vendor's skill and judgment in selecting sex toys that are suitable for their indicated use. If a dildo is displayed in the dildo section alongside sound dildo selection and care information, that dildo ought not to be there for novelty purposes only. If it is, the purchaser might just have the right to a refund when the product proves unsuitable for its particular use.