BFL's prices were clearly listed in USD, not BTC. Therefore, the refund they give will be in equivalent USD value. If BTC had dropped to $0.25/ea between the time of the order and now, do you think people would be complaining that they received back 20x the original Bitcoins they had paid? Or, if BFL was doing what you want, and only refunding the original BTC amount, do you think people would be complaining that they received a BTC refund only worth $65 when they paid $1,300 of BTC to begin with? The fact of the matter is, the only fair way to refund people is by using the original written purchase price, which was denominated in USD, not BTC.
BFL clearly stated that they accepted BTC as a form of payment. Barter laws would sanctify this point. After a certain amount of time of nondelivery, people have the right to demand a refund, and if the value of BTC was falling with no hopes of ever bouncing back, customers would have to settle for the BTC that they spent to be returned. If you have your device, and know that you will not make the BTC back on it that you spent, then it is not "profit" in terms of BTC. You cannot just switch $ with BTC so freely just because we are all aware of exchange rates. I get that you are trying to be optimistic though.
Please do show the barter laws that "sanctify this point," because what you're saying is, if Bitcoins became worth a penny each, BFL would be a-ok to refund everyone their original BTC used to buy a $1,300 product? So I would get back $2 worth of BTC as a "full refund", and this would be ok with you?
It's not profit in terms of BTC, but it is still profit as defined by, well, everyone, the IRS included.
If I traded you 20 pounds of gold for a gold mining operation, and then those 20 pounds of gold suddenly became worth 5x what they were because of speculation, would I not have a profit if I was only able to mine 15 pounds of gold over the useful life of the gold mining operation? Of course not - I'd have made a profit of 15 * 5 - 20 = 55 = almost 3 times my original investment.