Mary McKeown

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Mary McKeown

• Trading Standards Service

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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

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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.

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How?

• Enforce the criminal provisions of Consumer
  Protection Legislation
• Investigate any possible breaches
• Provide advice to businesses
• Provide advice to consumers
• Prosecute where necessary

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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

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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

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Jim Frazer

• Trading Standards Service

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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

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Previous to SOGA

• Caveat Emptor
• Buyer beware
• Consumerism / availability of goods
• Need for consumer protection

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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

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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

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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

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Sale of Goods Act 1979Implied Terms

• Satisfactory Quality Contd
• 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.

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Sale of Goods Act 1979Implied Terms

• Section 15 Sample
• Where goods are sold per sample the goods should
• match the sample
• Carpets
• Tiles
• Wallpaper

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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.

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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

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Distance Selling Regulations 2000

• No face to face contact
• Customer unable to examine the goods
• Enhanced rights for consumer
• Short period for withdrawal

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Distance Selling

• Internet
• Text Messaging
• Phone calls
• faxing
• Mail order catalogues
• Interactive TV

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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

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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

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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

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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

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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

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How to cancel

• In writing or durable medium
• Letter
• Fax
• Email
• NOT BY A PHONE CALL

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Trading Standards Service

• Bronagh Deery
• Trading Standards Officer

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The Consumer Protection from Unfair Trading
Regulations 2008

• Came into force in May 2008
• Implement the EUs 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.

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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

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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

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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

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What do the new Regs cover?

• General prohibition of unfair commercial
  practices i.e. conduct below an expected
  professional level
• Misleading practices actions and omissions
• Aggressive sales techniques that use harassment,
  coercion or undue influence
• 31 specific banned practices
• ALL CRIMINAL OFFENCES

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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

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• Professional diligence - standard of skill and
  care that is reasonably expected of a trader in
  that traders 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

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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

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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

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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

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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

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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

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Misleading Prices

• Price 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 NOW ONLY 8499
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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

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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

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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

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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

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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 consumers 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)

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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

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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

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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

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Thank you

• Bronagh Deery
• Email Bronagh.Deery_at_detini.gov.uk
• Consumerline 0845 600 62 62