Welcome To Wirral

How can a trade description be given?

A description can be given

• verbally
• in writing (e.g. via an advert, brochure, invoice, order form or as a statement on a website)
• by illustration (e.g. in advertisements or on packaging)
• by implication
• 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 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 i.e. what an item is made from.
• Fitness for purpose, strength, performance, behaviour or accuracy - This covers an extremely wide area (e.g. 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 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 are 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 (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 which closely resembles such an emblem.
• It is also an offence falsely to state or imply that any goods or services are of a kind supplied to any other person (e.g. 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 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.

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, e.g. by verbally describing them, writing a description down or altering the goods (e.g. by turning back the odometer) then he cannot rely on a disclaimer.

Guidance on the Act can be found at www.dti.gov.uk/access/trade/

Other rules relating to statements in adverts

Internet advertising is self-regulated through the Advertising Standard's Authority's (ASA's) Code of Practice. This states that adverts must be Legal, Decent, Honest and Truthful.

The ASA can take action to have an advert withdrawn or changed without having to wait for a complaint.

The Code of Practice contains detailed guidance on advertising and sales promotions, the following rules specifically relate to claims in adverts: Before submitting an advert for publication, advertisers must hold documentary evidence to prove all claims (whether direct or implied) that are capable of objective substantiation. The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the advert.

If there is a significant division of informed opinion about any claims made in an advert they should not be portrayed as generally agreed.

Advertisers may give a view about any matter, including the qualities or desirability of their products, provided it is clear that they are expressing their own opinion rather than stating a fact.

Claims for the content of non-fiction books, tapes, videos and the like that have not been independently substantiated should not exaggerate the value, accuracy, scientific validity or practical usefulness of the product.

Obvious untruths or exaggerations that are unlikely to mislead and incidental minor errors and unorthodox spellings are all allowed provided they do not affect the accuracy or perception of the advert in any material way.

• Testimonials and endorsements

Advertisers should hold signed and dated proof, including a contact address, for any testimonial they use. Unless they are genuine opinions taken from a published source, testimonials should be used only with the written permission of those giving them.

Testimonials should relate to the product being advertised.

Testimonials alone do not constitute substantiation and the opinions expressed in them must be supported, where necessary, with independent evidence of their accuracy. Any claims based on a testimonial must conform with the Codes.

Fictitious testimonials should not be presented as though they are genuine.

References to tests, trials, professional endorsements, research facilities and professional journals should be used only with the permission of those concerned. They should originate from within the European Union unless otherwise stated in the advert. Any establishment referred to should be under the direct supervision of an appropriately qualified professional.

The Codes also contain specific rules on certain types of adverts e.g. those aimed at children, and advertising for products such as cigarettes, alcohol, beauty therapies etc. For more details see the leaflet entitled 'Advertising and Promotions' or visit the ASA website at www.asa.org.uk

Please Note

This leaflet is not an authoritative interpretation of the law and is intended only for guidance. For further information please contact your local Consumer Protection or Trading Standards office.