mary mckeown trading standards service. structure statutory enforcement authority for consumer...
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Mary McKeown
Trading Standards Service
Structure
• Statutory enforcement authority for consumer protection legislation in Northern Ireland
• Part of central government• Approximately 30 officers for whole of Northern
Ireland• Offices in Armagh, Belfast, Ballymena,
Enniskillen and Londonderry
Role of Trading Standards Service
• Our aim is to promote a fair trading environment in which consumers are protected against malpractice, and responsible business activity is actively encouraged.
How?
• Enforce the criminal provisions of Consumer Protection Legislation
• Investigate any possible breaches
• Provide advice to businesses
• Provide advice to consumers
• Prosecute where necessary
Overview
We check
• That you get a full pint of beer• That your drink is not watered down• That your cotton t-shirt is cotton • That you get the amount of fuel you pay for at
the pump• That your jewellery is sterling silver• That the mileage on your car is genuine
Other activities
• Media work• Fund debt advisers• Talks to business, community groups, vulnerable
groups• Work with other agencies such as Police,
Customs and Excise, Citizens Advice and independent advice centres
• Consumerline
Jim Frazer
Trading Standards Service
SALE OF GOODS ACT 1979
(as amended) by:-
• The Sale and Supply of Goods Act 1994
• The Sale and Supply of Goods to Consumers Regulations 2002
Previous to SOGA
• Caveat Emptor
• Buyer beware
• Consumerism / availability of goods
• Need for consumer protection
Sale of Goods Act 1979Implied Terms
Section 12 Title Implied condition that seller has right to
sell the goods Buyer must be given quiet enjoyment of
goods free from any encumbrance
Sale of Goods Act 1979Implied Terms
Section 13 DESCRIPTION
ALL SALES (private and business) Where a description has been applied to goods the
goods must match the description given Must be a reliance on the description Adverts, goods on supermarket shelves etc
Sale of goods act 1979Implied terms
Section 14 SATISFACTORY QUALITY
Only in the course of a business NOT private sales
Must be fit for the purpose for which the goods are commonly used
Must be fit for the purpose made known by the buyer
Sale of Goods Act 1979Implied Terms
Satisfactory Quality Cont’d Appearance Durability Safety Free from minor defects
If the defects are brought to the buyers attention before purchase then the buyer cannot argue breach of contract due to issue of satisfactory quality. Level of satisfactory quality is effected by the price and description given to the goods.
Sale of Goods Act 1979Implied Terms
Section 15 Sample
Where goods are sold per sample the goods should
match the sample Carpets Tiles Wallpaper
Remedies under the old law (SOGA ’79)
REFUND (unless you have accepted the goods)
DAMAGES
SOMETIMES BOTH
The aim is to put the consumer back in the position they
would have been if the breach of contract had not
occurred.
Additional remedies under new lawSale and Supply of Goods to Consumers Regulations 2002
For consumers only Repair or replace Discount Money back or a discount Six month rule
Distance Selling Regulations 2000
• No face to face contact
• Customer unable to examine the goods
• Enhanced rights for consumer
• Short period for withdrawal
Distance Selling
• Internet
• Text Messaging
• Phone calls
• faxing
• Mail order catalogues
• Interactive TV
Pre – Contract Information
MUST INCLUDE:-• Business name• Business Address (if seeking payment in advance)• Description of goods or services• Full price (including any taxes)• Details of delivery costs• Details of how payment can be made• Arrangements for delivery and when customers can
expect goods to be delivered• Information on the right to cancel
Durable Form
• In writing:- post, fax, email• If contract by phone information must be
given in writing• If information held in a catalogue or
advertisement no requirement to send this durable form
• Must be given for goods at the latest when they are delivered and services at latest during performance
Cancellation Provisions
• 7 working days from the day after goods received or receive notice of cancellation, whichever is later
• For services 7 working days from the day after the customer agreed to go ahead with contract or received notice, whichever is later
If no cancellation provisions
• Deadline extended
• 3 months and 7 working days from the day after the customer receives goods or the service contract is concluded
Can the customer always cancel?
No! The provisions do not apply to:-• Goods made to the customers own specification• Goods that cannot be returned• Goods or services where the price depends on
fluctuations in the financial market• Betting/lottery services
How to cancel
• In writing or durable medium
• Letter
• Fax
NOT BY A PHONE CALL
Trading Standards Service
Bronagh Deery
Trading Standards Officer
The Consumer Protection from Unfair Trading Regulations 2008
• Came into force in May 2008
• Implement the EU’s Unfair Commercial Practices Directive
• Primary objective is to;
“harmonise consumer protection law across the EU by clamping down on unfair sales and marketing
practices between businesses and consumers.”
Scope of the Regulations
• Relate to business-to-consumer transactions (does not cover business to business sales)
• Covers conduct before, during and after the contract is made
• Replace large parts of existing consumer protection legislation – repealed TDA, CP(NI)O
• Represent the biggest change in consumer protection legislation for 40 years
What do the Regulations do?
• Clamp down on unfair commercial practices• Protect consumers and honest businesses• Replace some existing legislation with
general ban on unfair trading• Contain specific offences relating to
misleading actions and misleading omissions about products or services
• Create criminal offences for aggressive selling techniques
Benefits?• Force traders to act in a manner consistent with
the reasonable expectations of the average consumer
• Enable consumers to make free and informed purchasing decisions
• Clamp down on traders who use underhand tactics to gain an advantage
• Create a level playing field for traders
• Creates new criminal offences for practices which we were unable to deal with previously
What do the new Regs cover?
i. General prohibition of “unfair commercial practices” i.e. conduct below an expected professional level
ii. Misleading practices – actions and omissions
iii. Aggressive sales techniques that use harassment, coercion or undue influence
iv. 31 specific banned practices
ALL CRIMINAL OFFENCES
General prohibition – duty not to trade unfairly (Reg 3)
• States that a commercial practice will be unfair if:
- it contravenes the requirements of professional diligence (honest practice) AND
- it materially distorts (or is likely to) the economic behaviour of consumers with regard to a product
• Professional diligence - standard of skill and care that is reasonably expected of a trader in that trader’s field of activity
• Acts as a safety net – includes practices that do not fall into specific prohibitions of misleading and aggressive practices and 31 specific banned practices
Examples of professional diligence offences
• Debt collector calling to debtors place of work to collect money owed
• Car trader who removes bulb from warning light on dashboard to avoid repairing car
• Builder who takes money for work that is not finished or finished to a poor standard
• Trader who “clocks” a vehicle
Misleading Action (Reg 5)
A commercial practice is a misleading action if:
• It contains false information relating to a list of specified matters, or if its overall presentation is likely to deceive consumers in relation to the matters, and;
• It causes consumers to take a transactional decision they would not otherwise have taken
Specified Matters
• Can relate to main characteristics of product, price, the need for a service, replacement or repair, approval of external body, date of manufacture, after-sales assistance, fitness for purpose, specification, mileage, full service history, origin of product
Common examples of misleading actions
• Car odometer reading 50,000 miles when it has in fact travelled 150,000 miles
• Price indication on product stating £10 but charged £20 at till
• Trader claiming to be approved by Trading Standards
• Service garage stating that a car needs a particular part replaced when it does not
• Product stating “made in Italy” when it has not
Misleading Prices
• Price indicated must be actual price consumers should pay
• Non-optional extras must be included in price (no hidden extras)
• Prices in advertisements must be same as price displayed (advertised price should be valid until next edition of publication
• VAT inclusive
Misleading PricesPrice comparisons in
general• Previous higher price
and new lower price should be shown
• Most recent price available for 28 consecutive days
• Show intervening prices• CoP for Traders on
Price Indications
Sale£9999£8999
NOWONLY£8499
Misleading Omissions (Reg 6)
A commercial practice is a misleading omission if:• It omits or hides material information, or gives it
in an unclear, unintelligible or untimely manner, and;
• It causes consumers to take a transactional decision that they would not otherwise have taken
Material information
• Information that consumers need to have in order to make an informed decision
• Will depend on circumstances – what product is and where and how it is offered for sale
• May only need small amount of information for simple products and more information for complex products
Common examples of misleading omissions
• Failure to display price of car parking at point before consumers enter car park
• Failing to indicate that a contract must run for a minimum period
• Failure to indicate that goods are second hand
• Failure to inform consumer that vehicle has been involved in a accident
• Covering the odometer of a vehicle
Aggressive Practices (Reg 7)
A commercial practice is aggressive if:
• It significantly impairs consumers freedom of choice in relation to the product through the use of harassment, coercion or undue influence, and;
• It causes the consumer to take a transactional decision that they would not have otherwise taken
Common examples of aggressive practices
• Mechanic, who has done more work to car than agreed, refusing to give the car back until he has been paid
• Trader selling credit who pressurises an existing borrower to take out an additional loan
• Trader who refuses to leave a consumer’s house until consumer signs contract
• Trader who stays in consumers home for unreasonable period of time in order to sell product to consumer
• Debt collector who harasses debtor by contacting them at unreasonable hours and at unreasonable locations (such as work)
Banned Practices (schedule 1)
• Blacklist of 31 practices that are banned at all times as they are deemed to be so serious (see fact sheet for full list)
• No need for consumer element – no requirement to prove that consumer took a different transactional decision
Common examples of banned practices
• Falsely claiming a trader is “CORGI” registered or a member of “FMB”
• Falsely claiming that a trader is about to close down when they have no intention of closing
• Falsely claiming that a product can cure illness• A car trader giving the impression that they are a private
seller• Falsely creating the impression that the consumer has
won a prize• Creating the impression that the consumer cannot leave
the premises until a contract is formed
Enforcement and Penalties• The regulations are enforced by Trading Standards
Service and the OFT
• We investigate all criminal offences and where appropriate we will recommend criminal proceeding to PPS
Penalties
• On conviction a person is liable to;
– Magistrates Court a fine up to £5,000
– Crown Court an unlimited fine and/or 2 years imprisonment
