What does the law require?
How can a trade description be given?
What are the offences under the act (relating to goods)?
What descriptions of goods are deemed to be trade descriptions?
What does the law say in relation to the description of a service?
What else is prohibited under the act?
Who can commit an offence?
How can a trader avoid committing an offence?
Can a trade description be disclaimed?
What happens if I don't comply with the requirements?
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.
How can a trade description be given?
A description can be given verbally, in writing (for example, in an advert or brochure or as an invoice or order form), by illustration (for example, in advertisements or on packaging) or by implication. In addition, if goods are supplied in response to a request, using a specific trade description, 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 (for example, 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 (for example, in a shop) or having them in his possession for supply (for example, in a storeroom) is deemed to offer to supply them for the purposes of the Act.
These offences are strict liability offences, in other words, 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.
- 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.
- Composition - what an item is made from.
- Fitness for purpose, strength, performance, behaviour or accuracy. This covers an extremely wide area (for example, in relation to motor vehicles such expressions as 'immaculate condition', 'mechanically superb', and 'excellent condition' would be covered under this paragraph).
- Any physical characteristics not included in the preceding paragraphs. This means that any description not caught specifically above would amount to a trade description.
- Testing by any person and results thereof. For example, this would include any statement that a car has had its mileage independently checked.
- Approval by any person or conformity with a type approved by any person. This might include a statement that an item complies with a British Standard.
- Place or date of manufacture, production, processing or reconditioning. This is self explanatory, but would include any statement on goods such as 'Made in England'.
- Person by whom manufactured, produced, processed or reconditioned. This would include such things as brand names on an item. Other history, including previous ownership or use. For example, the number of owners of a vehicle or the number of miles indicated on an odometer.
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:
- the provision of services, accommodation or facilities; or
- the nature of any services, accommodation or facilities provided; or
- the time at which, manner in which or persons by whom any services, accommodation or facilities so provided; or
- the examination, approval or evaluation by any person of any services, accommodation or facilities so provided; or
- the location or amenities of any accommodation so provided.
What else is prohibited under the act?
- It is an offence falsely to 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 (for example, 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, which 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 (for example, by stating 'County Council Contractor'
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 to 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.
Can a trade description be disclaimed?
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. However, if a person applies a description to goods himself, for example, by verbally describing them, writing a description down or altering the goods (for example, by turning back the odometer) then he cannot rely on a disclaimer.
What happens if I don't comply with the requirements?
These requirements are detailed in The Trade Descriptions Act 1968. Failure to comply could therefore result in prosecution and the courts may impose a fine.
This information is not comprehensive, it is subject to periodic amendment and cannot be held to be an authoritative interpretation of the law. For more detailed information please contact:
Bury Trading Standards Office
Textile Hall
Manchester Road
BURY
BL9 0DG
Tel: 0161 253 5566
Fax: 0161 253 5547
email: tradingstandards@bury.gov.uk
