Trading standards in the United Kingdom — Who is responsible

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CONSUMER PROTECTION T R A D I N G S T A N D A R D S IN THE UNITED K I N G D O M - - W H O IS RESPONSIBLE The Trading Standards Service within the United Kingdom is based on:• • • • •

Six Metropolitan County Councils London Boroughs All 'Shire' Counties in England and Wales 12 Scottish Regional and Island Councils Department of Commerce Northern Ireland

RESPONSIBILITIES Departments enforce approximately 40 Acts of Parliament and 600 Regulations of which the more important are:• The Weights and Measures Acts 1963 and 1979 • The Trade Descriptions Acts 1968 and 1972 • The Food Act 1984 (Labelling and Compositional Provisions) • The Consumer Safety Act 1978 • The Consumer Credit Act 1974 • The Road Traffic Act 1972 In addition, departments provide varying levels of consumer advisory services which not only directly assist complainants, but also provide information about traders and trade practices, which is vital for the efficient and effective enforcement of the legislation. Methods of enforcement vary according to circumstances but in the main are divided on the following lines:(a) Unannounced visits to retailers, manufacturers or distributive premises to test equipment, sample or test goods, examine documents and advertising material. (b) Pre-arranged contact with businessmen to advise on quality or quantity control methods, the development of new products including compositional labelling, advertising and safety requirements, staff training and monitoring the supply of goods and services to local businessmen. (c) Special investigation of fraud based on market information, complaints and previous history. (d) Monitoring supplies to local authorities and other public bodies. In many cases, a trader visit will be the result of a

consumer complaint or a widespread investigation concerning a particular product. Secondly, the service has built up a reputation for impartiality and earned the respect of both trader and consumer in promoting and monitoring a fair and equitable trading climate in the market place. All practising officers have, since the beginning of this century, been required to pass a statutory qualifying examination before appointment.

CO-ORDINATION OF SERVICE Close co-ordination between local authorities on trading standards matters is vital because:(a) industrialists must be confident of a single interpretation of detailed and complex labelling/packaging laws to avoid conflicting instructions and unfair competition; (b) trade recognises no local authority boundaries and consumers nationally are often affected by the same trading practices; Trading standards legislation and its enforcement are heavily influenced by membership of the EEC as they can create barriers to trade. In most EEC Member States, enforcement is at a national level and any lack of co-ordination in the UK could have serious implications upon manufacturers and producers. Consequently, in 1978 the Metropolitan, County and District Associations jointly supported the formation of LACOTS (Local Authority Co-ordinating Body on Trading Standards). One of the initiatives taken by LACOTS was to adopt the 'Home Authority Principle' by which each local authority accepted primary responsibility for ensuring that all goods/services produced or imported within its geographical area were lawful. This not only minimised duplication but gave each major company in the UK a single local contact point through which all other local authorities work on trading standards matters could be co-ordinated. Individual local authorities have become specialists in particular areas of work thus providing a research facility and to act as 'lead authority" for the country. This has been particularly necessary to combat fraud in food engineering, the control of dangerous imported consumer products, the spread of counterfeit goods and to minimise the criminal activities associated with the second-hand car trade.

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Co-ordination is further encouraged by the Institute of Trading Standards Administration (ITSA), the professional body representing some 1500 Trading Standards Officers, Its aims and objectives are to encourage uniformity and practice amongst its members to ensure effective enforcement throughout the United Kingdom. This is achieved through close co-operation with Trade and Industry and guidance to members on operational questions and legal interpretation. During recent years it has been the Institute of Trading Standards Administration which has been most closely involved in highlighting the problems of product counterfeiting.

COUNTERFEITING AND THE TRADE DESCRIPTIONS ACT 1 9 6 8 This has been the principal weapon available to local authorities in maintaining product credibility. Section 1 of the Act under which all prosecutions to date have been brought states:'Any person who, in the course of a trade or business (a) applies a false trade description to any goods; or (b) supplies or offers to supply any goods to which a false trade description is applied; shall, subject to the provisions of this Act, be guilty of an offence.' and Section 2 defines a trade description as including:'person bywhom manufactured, produced, processed or reconditioned.' Furthermore, the definition of a false trade description is further extended by Section 3(3) of the Act which provides:'Anything which, though not a trade description, is likely to be taken for an indication of any of those matters and as such an indication, would be false to a material degree, shall be deemed to be a false trade description.' For the moment there seems no reason to question the adequacy of dealing with counterfeit cases under Section 1 of the Act although 'pirated' copies of products bearing no directly recognisable manufacturers or producers name would seem to be less certain of protection.

POWERS OF ENFORCEMENT The powers of enforcement contained in the Act are in line with those of the Weights and Measures Act 1963, Consumer Credit Act 1974 and Consumer Safety Act 1978. Section 28(1) provides:'A duly authorised officer of a local weights and measures authority or of a Government department may, at all reasonable hours and on production, if required, of his credentials, exercise the following powers, that is to say:(a) he may, for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only as a dwelling:

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(b)if he has reasonable cause to suspect that an offence under this Act has been committed, he may, for the purpose of ascertaining whether it has been committed, require any person carrying on business to produce any books or documents relating to the trade or business and may take copies of, or of any entry in, any such book or document." (c) if he has reasonable cause to believe that an offence under this Act has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed; (d) he may seize and detain any goods or documents which he has reason to believe may be required as evidence in proceedings for an offence under this act; (e) he may, for the purpose of exercising his powers under this subsection to seize goods, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed, require any person having authority to do so to break open any container or open any vending machine and, if that person does not complywith the requirements, he may do so himself.' Where a justice of the peace is satisfied (upon the fulfilment of certain conditions) that entry is either likely to be refused, or that an application to enter the premises would defeat the objects of inspection, then he may issue a warrant to enter premises, if need be by force.

METHODS OF OPERATION Although operating within local constraints and policies there is considerable co-operation between Trading Standards Officers. Through the weekly Confidential Bulletin which is subscribed to by all local authorities information can be disseminated with the minimum of delay. It outlines current investigations, gives the results of prosecutions and affords trade and industry (with the co-operation of a local authority or the Institute of Trading Standards Administration) an opportunity to bring to the notice of enforcement officers nationally a particular trading problem. Close co-operation with the trade is essential in counterfeit cases and it is accepted that civil action is often more effective in the short term in preventing the distribution of a bogus product. However, there is an increasing awareness amongst Trading Standards Officers of the powers available under consumer law and there is usually a willingness and an ability to consider offences under the Theft Act 1968 and the Criminal Law Act 1977, when appropriate. The amended Copyright Act 1956 is being used as an alternative sanction by some authorities. One of the uses of the Copyright Act is the provisions it contains as to the forfeiture of pirated and counterfeit goods. These would seem more easily enforceable than those contained in Section 43 of the Criminal Courts Act 1973.

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EXAMPLES OF RECENT INVESTIGATIONS Product counterfeiting has been described as the 'Boom Industry of the Eighties' and certainly in recent years the sophistication of the fraud has reached alarming proportions. Cheap imitation cosmetics, razor blades and ball point pens were always the 'stock in trade' of the shady street trader. Similar products purporting to be 'as sold by' or 'manufactured for' a reputable High Street retailer did from time to time cause local minor irritations. Now however, spurious copies of well known car parts, leisure wear, sports goods, electrical appliances and hand tools are common place. Following highly successful operations involving leisure wear, cosmetics and cassette tapes there has recently been a national response to the problems facing the Video Cassette Industry. In my own authority a team of specially trained officers visited every known retail outlet and Seized over £ 1 0 0 , 0 0 0 counterfeit or pirated tapes. Fines in respect of resulting prosecutions totalled over £ 3 0 , 0 0 0 .

PIRACY OF COMPUTER SOFTWARE There is no doubt that as soon as any new idea, system, product or commercial enterprise appears on the market, someone somewhere will immediately explore the possibility of stealing the cream, Indeed, the very reason that the intellectual property laws of patents, trade marks and copyright were passed was to protect the rights of those who research and develop new ideas. Unfortunately, law and its enforcement is rapidly becoming unable to keep pace with technological advance, and no more so than in the field of computer software. There ar~ perhaps three main areas of piracy, viz:(a) Counterfeiting Where a software program is deliberately counterfeited and sold ostensibly in the name of the original manufacturer/processor, with the obvious creaming off of profit. (b) Pi racy/Copyi ng Where genuine programs are copied using either

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professional equipment or joining up two home computers/recorders in a 'back to back' situation. Thus one person can borrow a program from a club, make himself a copy and have a £1 0 program for the price of a blank. (c) Idea Stealing Where original ideas and methods are used to produce idential or similar programs. Legally, of course, as has been mentioned previously there are remedies in both the civil and criminal courts. The problem is in the detection of offences to secure enforcement of these remedies. It is reasonably easy to detect counterfeit and copies software on sale in retail or wholesale outlets, but what is nigh impossible is to detect the private copies, be it a single user or an organised club. However, the trading standards service, ever mindful of its role in protecting consumers against counterfeiting or piracy, and owners of intellectual property against economic loss, is making investigations into these problems. Enquiries have been made into counterfeit games said to be compatible with computers, switching labels and methods of identifying counterfeit or copied tapes. In a recent article by Roland Rowell, of West Midlands Trading Standards Department, it was revealed that in a 20 month period, in the UK, there were 811 prosecutions under the Copyright Act, with a further 4 7 4 charges taken into consideration, (mainly audio and video cassettes) resulting in fines and costs totalling well over £Y2 million, and at least seven custodial sentences. By co-operation with the software protective organisation FAST, and with producers and manufacturers it is to be hoped that progress can be made. It must also be recognised that incumbent upon manufacturers and the owners of copyright to use their own computer knowledge and technical expertise to put security stops on their product to prevent counterfeit or piracy. By producers making it harder to copy and by enforcement officers making it harder for retailers to sell or hire, then perhaps the problem can be contained within acceptable parameters. Robert V. Wright, Chief Consumer Protection Officer, South Yorkshire County Council.

COMPUTER CONTRACTS A N D C O N S U M E R LAW Computer disputes are becoming commonplace. When a new computer system breaks down or proves unsuitable, few businesses can afford to write their misfortunes off to experience. But what are the prospects of success for a disillusioned computer user who contemplates suing his suppliers ? Whether through ignorance or lack of negotiating muscle, computer users frequently sign standard form contracts which lean heavily in favour of the supplier. It is often only after the new system has been installed and found to be wanting that they read all the small print, which is likely to contain sweeping exclusions of - or limits t o - legal liability. An "entire agreement

clause', for example, may purport to nullify all promises and assurances made by the salesman during negotiations. The contract may exclude warranties of merchantable quality and fitness for purpose altogether or limit them to a wholly inadequate period of 90 days. A dissatisfied customer may be able to rely upon the Unfair Contract Terms Act 1977, which is the cornerstone of modern consumer protection law. Even in the context of commercial contracts, the Act subjects exemption clauses to the "requirement of reasonableness' i.e. they must be fair and reasonable in all the circumstances. Schedule 2 of the Act provides guidelines for the application of the reasonableness test. Where relevant,