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Home > Craft Topics > Regulations > Trade Descriptions

Trade Descriptions

The following information is for guidance only. For further information, please contact your local Trading Standards Service.

What does the law require?

 

Any descriptions of goods and services, given by a person acting in the course of a trade or business, should be accurate and not misleading.

It should be noted that to commit an offence, the description must be false to a material degree, e.g. has a significant impact on a purchaser’s ability to enjoy and/or use the goods/services, or a significant effect on their value. The Act is not intended to cover insignificant inaccuracies; ultimately only a court can decide what would constitute a material degree.

 

How can a trade description be given?

 

A description can be given verbally, in writing (e.g. in an advert or brochure, or on an invoice or order form), by illustration (e.g. in advertisements or on packaging) or by implication. In addition, if goods are supplied in response to a request that includes a specific trade description (e.g. a customer specifies they want a granite worktop), it is possible that it would be held that the supplier of the goods has applied the description himself.

 

What are the offences under the Act (relating to goods)?

 

The Act makes it an offence to:

         apply a false or misleading description to goods (e.g. by writing it down, making a verbal statement or by turning back a car’s odometer); or

*         supply or offer to supply goods to which a false or misleading trade description is applied. A person exposing goods for supply (e.g. in a shop) or having them in his possession for supply (e.g. in a storeroom) is deemed to offer to supply them for the purposes of the Act.

These offences are strict liability offences, i.e. it is possible for a trader to commit an offence without intending to do so.

 

What descriptions of goods are deemed to be trade descriptions?

 

The following matters are specifically included within the meaning of trade description:

*         Quantity, size or gauge.
This includes length, width, height, area, volume, capacity, weight and number, e.g. rug 1m x 1.5m, 1 pint tankard, 17" screen.

*         Method of manufacture, production, processing or reconditioning.
This covers most of the aspects concerning the work done in the making, processing or repairing of goods, e.g. hand finished, cold-pressed.

*         Composition, i.e. from what an item is made, e.g. solid teak, gold plated.

*         Fitness for purpose, strength, performance, behaviour or accuracy,
e.g. unbreakable, mechanically sound.

*         Any physical characteristics not included in the preceding paragraphs,
e.g. fitted with disc brakes.

*         Testing by any person and results thereof, e.g. a statement that a car has had its mileage independently checked.

*         Approval by any person or conformity with a type approved by any person, e.g. a statement that an item complies with a British Standard

*         Place or date of manufacture, production, processing or reconditioning,
e.g. any statement on goods such as ‘Made in England’.

*         Person by whom manufactured, produced, processed or reconditioned,
e.g. brand names on an item such as Armani, Microsoft, Duracell – note also that misuse of brand names is likely to breach the Trade Marks Act.

*         Other history, including previous ownership or use, e.g. previously owned by a famous pop star.

What does the law say in relation to the description of a service?

 

The Act also makes it a criminal offence:

*         to make a statement which is known to be false or misleading; or

*         recklessly to make a statement which is false or misleading as to any of the following matters:

1.      The provision of services, accommodation or facilities, e.g. qualified accountant, money back guarantee.

2.      The nature of any services, accommodation or facilities provided, e.g. recommending repair work implies the thing to be repaired has been properly examined.

3.      The time at which, manner in which or persons by whom any services, accommodation or facilities so provided, e.g. hourly cabaret show.

4.      The examination, approval or evaluation by any person of any services, accommodation or facilities so provided, e.g. use of logos of trade bodies such as AA, RAC, CORGI etc.

5.      The location or amenities of any accommodation so provided, e.g. 10 minutes to the beach.

What else is prohibited under the Act?

*         It is an offence to falsely state or imply that any goods or services are of a kind supplied to, or approved by, the Queen or any other member of the Royal Family (e.g. by the misuse of the phrase or emblem 'By Royal Appointment').

*         It is also an offence to use, without the authority of the Queen, any device or emblem signifying the Queen’s Award to Industry or anything that closely resembles such an emblem.

*         It is also an offence to falsely state or imply that any goods or services are of a kind supplied to any other person (e.g. by stating 'Council Contractor'/as supplied to X).

Who can commit an offence?

 

Any person acting in the course of a trade or business can be guilty of an offence under the Act. This would include Directors, Managers and all levels of employees.

 

How can a trader avoid committing an offence?

 

The Act provides a trader with the defence that the commission of an offence was due to a mistake, or to reliance on information supplied to him, or the act or default of another person, an accident or some other cause beyond the traders control; and that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

In simple terms, this means that a system should exist to avoid giving false descriptions, and that the system should be followed. Some examples of precautions for a motor trader are set out below:

When buying motor vehicles, always check the mileage; make sure it is written on a purchase document/receipt, and get the signature of the seller declaring whether or not the mileage is correct, incorrect or unknown. Do not rely on verbal statements.

Check that the condition of the car is mechanically and bodily consistent with a vehicle of that mileage and age. Look at the service history, and if the car is accompanied by all previous MOT certificates, consider whether they show a feasible progressive mileage history.

If, after making checks (e.g. with previous owners), there are any doubts as to the mileage, you should disclaim the odometer reading. A record should be maintained of any checks you have made.

Ensure that all customer-facing staff are properly trained and have access to all relevant details.

 

How and when can a disclaimer be used?

 

It may be possible to disclaim a trade description, for example, with cars when a trader does not know whether the mileage indicated on the odometer is correct. However, in a situation like this, any disclaimer must be as bold, precise and compelling as the original description and effectively brought to the attention of a potential buyer. However, if a person applies a description to goods himself, e.g. by verbally describing them, writing a description down or altering the goods (e.g. by turning back the odometer), he cannot rely on a disclaimer.

The disclaimer has no statutory basis but is a creation established and developed by the courts. It is important to note that the use of a disclaimer is not a defence that a trader may plead once the prosecution have proved an offence; it is better thought of as an attempt to negate the false trade description and so prevent any offence occurring in the first instance.

 

What are the penalties?

 

Failure to comply with the Trade Descriptions Act 1968 is a criminal offence. The maximum penalty on conviction at a Magistrates' Court is a fine of £5,000 per offence. The maximum penalty on conviction in a Crown Court is an unlimited fine and/or two years imprisonment. In addition, a trader may lose his consumer credit licence.

Purchasers of misdescribed goods/services are likely to seek redress through the civil courts.

 

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