In a nutshell, these are the new civil enforcement powers Trading Standards officers can use from 1 October 2015 when they find a business in breach of consumer law. So if you sell goods or services to the public, you might want to read on…
By way of background, the aim of the new powers is to put the consumer very much at the heart of things and to allow Trading Standards to seek a “wider range of innovative and positive measure in the civil courts” (Department for Business Innovation and Skills: Guidance for enforcers of consumer law – the BIS guidance).
There are three categories of enforcement measures:
- “Redress” measures: to compensate consumers who have suffered loss, to enable a consumer to terminate a contract and in situations where it is impossible or very costly to identify individual consumers, measures which are in the collective interests of consumers. Redress measures take priority over “compliance” or “choice” measures;
- “Compliance” measures: to prevent or reduce the risk of repeat offending; and
- “Consumer information” (name and shame) measures: to give consumers information about a business’ non-compliance with consumer law to enable more effective purchasing decisions.
A word of warning: if you have broken the law and Trading Standards come knocking on your door, they won’t present you with a menu of possible measures from which to choose. Things have been kept deliberately wide to give Trading Standards (and in the worst case scenario the court) the flexibility to find the most appropriate measure(s) for the particular circumstances.
By way of example, the BIS guidance suggests that possible measures might include a business –
- Setting up a redress scheme and advertising it to customers;
- Setting out the breach and what is being done to put it right on its website or in the press;
- Appointing a compliance officer;
- Providing more staff training;
- Setting up a robust customer complaints scheme.
But these are merely examples. The idea is that if the Trading Standards’ officer believes it is appropriate to use enhanced consumer measures, they will work with the infringing business to agree suitable measures which are just, reasonable and proportionate and bespoke to the situation.
If agreement can be reached on appropriate measures, the business will give an undertaking (a formal agreement) to Trading Standards to comply with the measures to be imposed. If the business refuses to co-operate or agreement cannot be reached, then the matter will have to go to court and a judge will decide on what measures will be imposed, having heard from both sides.
Whilst absolute flexibility with regards to measures is good on the one hand (as businesses will also in theory be able to suggest suitable measures), it is quite possible that 1) the inherent lack of certainty of what is “just, reasonable and proportionate” in any particular case 2) the potential for inconsistency between individual Trading Standards officers or from authority to authority and 3) the threat of a day in court (with the stress and cost that entails) in the event of disagreement will make discussions and decision making quite tricky for business owners.
And another word of warning: just because enhanced consumer measures are on the table don’t sigh with relief and assume that there won’t be a criminal prosecution. The BIS guidance makes it clear that where there is a serious breach, enhanced consumer measures may be used in conjunction with criminal proceedings.
So, how to ensure that you don’t have to hear the words “enhanced consumer measures” again? Catch up on the recent and forthcoming changes to consumer law and ensure your business is compliant and remains compliant through regular reviews. If you are unfortunate to have a visit from Trading Standards, then we recommend getting your solicitor on board as soon as possible to help you navigate the new and emerging world of enhanced consumer measures.
If you would like help with staying on the right side of consumer law or you have been contacted by Trading Standards about a potential breach and need some guidance, then please contact Cliff Morris.
This blog was written by Sarah Wheadon who left the firm on 31 January 2016