This part makes provisions for the investigatory powers for Trading Standards Service.
Two different types of enforcement are covered - criminal and civil.
The ordinance can be enforced by the Trading Standards Service by:
- Prosecuting offences,
- Undertaking civil enforcement
or by the consumers enforcing their rights.
Powers
- Trading Standards Service will have the following powers under the ordinance:
- Require production of information for civil enforcement or to determine whether to issue a safety notice,
- Purchase products,
- Observe the carrying on of the business,
- Enter premises without a warrant,
- Enter premises with a warrant,
- Inspect products,
- Require production of documentations,
- Seize and detain goods,
- Seize documents required as evidence,
- Break open containers,
- Require assistance from a person on the premises,
- Gather information relating to offence of failure to inform of cancellation rights.
Summary of the breaches in legislation
Breach
Penalty
Part III - Information, cancellation & additional charges (off-premises contracts)
Failure to tell consumer the conditions, time limit and procedures for exercising cancellation right
Time limit for cancellation extended
Offence - on summary conviction fine not exceeding level 4 on the uniform scale
If applicable, failure to tell consumer they will have to bear the cost of returning goods under cancellation right
Trader must bear cost for return of goods
Offence - on summary conviction fine not exceeding level 4 on the uniform scale
Failure to tell consumer they must pay for service provided up to cancellation if they request supply of service to begin before cancellation period expires
Consumer does not have to pay for service provided up to point they cancelled
Offence - on summary conviction fine not exceeding level 4 on uniform scale
Part IV - Unfair trading
Contravenes the requirements of professional diligence
Offence - summary conviction, fine not exceeding level 5 on the uniform scale
or conviction on indictment, fine or imprisonment for a term not exceeding 2 years or both
Misleading action
Misleading omission
Aggressive practice
Commercial practice listed in schedule 6
Part V - Product safety
Sale or supply of unsafe product
Term of imprisonment not exceeding 12 months or a fine or both
Failure to comply with a safety notice
Failure to fulfil obligations as producer
Term of imprisonment not exceeding three months or fine not exceeding level 5 on the uniform scale or both
As distributor, failure to pass on information about an unsafe product
As distributor, failure to keep and produce documentation for tracing origin of a product
As distributor, failure to cooperate in action taken by a producer or TSS to avoid risks of an unsafe product
Failure to inform TSS about unsafe products, the action taken to prevent risk and other jurisdictions where the product is supplied
Part VI - Offences related to TSS officers
Obstruction of TSS officer
Fine not exceeding level 3 on the uniform scale
Giving false information
On summary conviction, fine not exceeding statutory maximum or conviction on indictment, fine or imprisonment for term not exceeding 2 years or both
Impersonating a TSS officer
Fine not exceeding level 4 on the uniform scale
Civil enforcement
- Process:
- Identify the infringement
Infringements are the practices that contravene a requirement of the Ordinance and harm the collective interest of consumers.- Try to engage with the trader
To stop the infringement happening now and in the future.
Trading Standards Service can't apply for an enforcement order for 14 days after the request for engagement is made (7 days for interim order).- Accept an undertaking
Trading Standards Service can accept an undertaking before applying for an enforcement order.
Undertaking applies to a specific period of time, person or body of corporate.
An undertaking might:
-include a requirement to implement enhance consumer measures,
-require publication of the undertaking by the affected party, Trading Standards Service might also publish the undertaking itself.
If the person fails to comply with an undertaking, Trading Standards Service can apply for an enforcement order.- If undertaking not agreed seek an enforcement order
Enforcement orders are granted by the Royal Court. Court can accept an undertaking in place of an order.
Enforcement orders must indicate the nature of the conduct which constitutes the infringement and direct that the conduct is stopped and not repeated.
There are two types of the enforcement orders:
-Normal,
-Interim - used when an application for an enforcement would likely be granted and it is important to stop the conduct immediately.
The enforcement orders might apply to person or body corporate. The order may require the person affected to publish the content of the order or prescribed corrective measures.- Enhance consumer measures
- Enhanced consumer measures can be included as part of an undertaking or enforcement order. They must be just, reasonable, and proportionate. They fall into the categories:
- Redress - used only where consumers suffered loss,
- Compliance - prevent or reduce risk of future non-compliance,
- Choice - Enable consumers to choose more effectively between traders
Part VIII - guidance and reporting
- Trading Standards Service must:
- prepare and publish information and guidance to explain the Ordinance to those affected by it however TSS considers appropriate,
- make an annual report to the Committee on its activities,
- as soon as practicable the President of the Committee must submit that report for consideration by the States.
