Journal of Trading Standards May 2018

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Interview

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Minister Andrew Griffiths shares his future ambitions

Green Paper

Expert opinion on the talking point of the summer

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Pricing

We look again at the recent pricing practices guidance

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Lettings

Will new Government plans suffice to clean up lettings?

Summer 2018 | www.journaloftradingstandards.co.uk

BEACON OF HOPE Will the new national body be a guiding light for product safety?

The British Toy & Hobby Association (BTHA) represents responsible toy manufacturers and distributors in the UK, and promotes best practice in all aspects of product design, toy safety, ethical manufacturing, environmental issues and responsible marketing, on behalf of its members.

How the BTHA can help Trading Standards Officers •

Free training on Toy Safety Subjects – The BTHA offer Trading Standards Officers free training, either at their venue or at our London offices, on a range of Toy Safety subjects or for bespoke requests

•

The BTHA produce numerous chemical substance guidance documents for members and can help identify the location and sources of restricted substances

•

Many BTHA guidance documents are publicly accessible for TSO’s to use, as well as membersonly guidance documents being made available on occasion if TSO’s contact the BTHA

•

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The BTHA works closely with colleagues and government in the UK and abroad to stay ahead of trends and issues

Many of the BTHA Technical Advisors and Committee members sit on the standards development committees in the UK and in Europe enabling the BTHA to have the latest status of toy safety information

•

The BTHA hosts the UK interpretations committee which can take requests for interpretation queries for any Toy Safety Standard issues

To find out how to get involved with the British Toy & Hobby Association, please contact jerry.burnie@i-q-s.co.uk www.btha.co.uk | 020 7701 7271 | queries@btha.co.uk

The Journal of Trading Standards SUMMER 2018

Leader

Ringing the changes

Editor-in-Chief:

Eleni Chalkidou Editor:

Paul Evans

Just under a year ago, the Grenfell Tower fire sparked national outrage and a media storm that is still in full force. From a trading standards perspective, the tragedy - and others like it brought the profession squarely into the public eye, making it a reference point for the legal, ethical and practical questions that Malcolm Craig inevitably followed.

Chair, CTSI Finding positives in challenging times has been an important ability for those in trading standards for a long time. The profession is now well-placed to drive positive change and help to re-establish public faith in official systems and regulations, built to fit the modern marketplace.

And the changes are coming. We are engaging better with central government; evidenced by the recent Modernising Consumer “Safety & Standards promises Markets green paper(read Craig a much-anticipated and greatly McClue’s assessment on p20) and the launch of Safety & Standards needed national approach to at the beginning of this year product safety.”

(Matthew Chapman asks the tough questions on p16), which promises a much-anticipated and greatly needed national approach to product safety. To mark this closer relationship, we had a conversation with Andrew Griffiths MP for this issue (hear from him on p36).

There are regulatory changes too, with new legislation on lettings (Helen Nugent, p30), new guidance for pricing legislation (Michael McCaw, p26) and a new Offensive Weapons Bill announced (see Matt Allwright’s take on p13).

CTSI is making changes of its own. We are launching new qualifications, a new event, in the form of Symposium 2018 (p48) - with a greater focus on educating, training and informing the profession to adapt to this altered landscape - and, last but not least, a new publications strategy, with this first issue of Journal of Trading Standards and its accompanying website.

We hope it will bring better, quicker, more accessible content in print, digital and video form to a profession that now, more than ever, needs to keep up with change.

www.JournalofTradingStandards.co.uk

Art Director:

Daniel Miller Reprographics:

Robin Sloan Lead Developer:

Michael Sadler Videographer:

Panji Kaonga Writers:

Aaran Fronda, Helen Nugent, Matthew Chapman, Michael McCaw, Richard Young, Temoor Iqbal

Article suggestions and feedback should be sent to: Paul Evans, Editor editor@JournalofTradingStandards.co.uk

The Journal of Trading Standards magazine and website are produced on contract by Fourth Estate Creative Ltd. www.fourthestatecreative.com connect@fourthestatecreative.com Printed in the UK by Manson Group Distributed by Gold Key Media Published by the Chartered Trading Standards Institute, 1 Sylvan Court, Sylvan Way, Southfields Business Park, Basildon SS15 6TH. www.tradingstandards.uk 01268 582 200 © 2018, Chartered Trading Standards Institute. All rights reserved.

Views expressed by the authors are not necessarily the views of CTSI.

| 03

Since 2007, there have been 516 recall notices issued for electrical products in the UK.*

Safer Products = Better Business Electrical Safety First has warmly welcomed the launch of the UK Government’s Office for Product Safety and Standards.

But for the last 2 years, the Charity has also developed a range of consultancy services designed to support organisations who are involved – at any point in the supply chain – in the retail of electrical products and appliances.

PRODUCT SAFETY SERVICES • Risk Assessment • Independent Product Testing and Investigation • Electrical Product Procurement Processes • Product Safety Training All our work is undertaken in the strictest confidence.

As an independent charity, we ensure all advice and guidance given is impartial, fair and honest. Our team of experts specialise in providing companies with tailored advice to ensure the products they manufacture, import and sell, fulfil all legal requirements and make consumer protection the highest priority.

Counterfeits can be so sophisticated, only dismantling - or an X-ray - can identify the fake.

*Accessible at: www.electricalsafetyfirst.org.uk/product-recalls

For more information, or to discuss your needs, contact: Martyn Allen, Technical Director, Electrical Safety First.

E: martyn.allen@electricalsafetyfirst.org.uk

Matt Allwright Matt is a journalist and presenter of the BBC’s Watchdog and Rogue Traders.

Craig McClue Craig is Head of Policy at CTSI.

E D I TO R I A L B OA R D

COLUMNISTS

Editorial

Leon Livermore

Malcolm Craig

David Riley

Chief Executive, CTSI

Chair, CTSI

Vice Chair, CTSI Programme Manager, NTS

After 25 years in local government, Leon joined the Chartered Trading Standards Institute as its Chief Executive in 2013.

Malcolm has 17 years’ experience working across trading standards services in Scotland. He became Chair in September 2017.

David has more than 30 years’ experience in the profession and became Vice Chair in September 2017.

Ben Richards Ben is Campaigns and Policy Executive at CTSI.

Sara Barry

Damien Doherty

David MacKenzie

Head of Safer Communities, Lincolnshire CC

Chief Inspector for Northern Ireland Trading Standards Service

Trading Standards Manager, Highland Council

C O N T R I B U TO R S

Sara is Immediate Past Chair of the CTSI and has led Lincolnshire CC through major budget cuts.

Damien has 16 years’ experience and focuses on scams and doorstep crime.

David is a CTSI Lead Officer for e-Commerce with 27 years’ experience in the trading standards profession.

LEGAL

Miles Bennett & Charlene Sumnall 5 Paper Buildings Miles and Charlene are leading consumer law barristers from 5 Paper Buildings, Temple, London.

ACADEMIC RESEARCH

Phil Owen

Gareth Walters

Christine Heemskerk

Service Director (Prof. Standards), CTSI

Manager, Monmouthshire Trading Standards Service

Independent Consultant

Phil has experience across private, public and not-forprofit sectors with a focus on regulatory outcomes.

A CTSI Fellow since 2013, Gareth is Branch Secretary for Wales and Chair of the Welsh Animal Health Panel.

Christine is a self-employed consultant to the trading standards profession and a CTSI Lead Officer for Product Safety.

Dr Michael Duignan Coventry Business School

& Lewis Walsh Anglia Ruskin University

Michael and Lewis are lecturers in management and business.

CPPD

David Hart Competition and Markets Authority David is a CMA Project Manager.

www.JournalofTradingStandards.co.uk

Prof Louise M. Hassan

Eleni Chalkidou

Paul Evans

Professor of Consumer Psychology, Bangor Business School

Editor-in-Chief and Director of Communications, CTSI

Editor and Managing Director, Fourth Estate Creative

Eleni joined CTSI in May 2017 bringing a wealth of comms experience across business, law and publishing.

Paul has worked across books, newspapers, magazines, web and video in an 18-year media career.

Louise specialises in understanding consumer protection issues.

| 05

Local Authorities to benefit from practical online legislation guidance By offering legislative training to your retail business partners, you can now generate additional income.

Working in partnership with Virtual College under the joint ‘TradeSimple’ brand, CTSI has developed a suite of practical online courses which offer traders jargon free, step-by-step guidance to important legislation.

Courses currently available

As a local authority reseller, you will have the benefit of your own branded e-commerce site which can be used to promote the above courses.

This provides a simple way of generating income whilst adding value to your business partnerships.

• • • • • •

Prevention of Underage Sales Consumer Contracts – Distance Sales Consumer Rights Act 2015 Trading Fairly Storing and Selling Fireworks Safely and Legally Consumer Contracts – Off Premises Sales

Coming soon •

Alternative Dispute Resolution

For further details please visit www.tradesimple.org.uk or email productinfo@tsi.org.uk

Contents REGULARS

08 | Upfront

Our regular look at the light and the dark of the profession, along with a snapshot of the activity of TSOs from around the UK.

13 | Matt Allwright This issue, Matt looks at the Government’s new Offensive Weapons Bill and the media obsession with spine-chilling images.

COVER STORY

FEATURE

16

20

Standards & Safety: the road ahead Matthew Chapman takes a look at what led to the creation of the new Office, and what the roadmap for the future might look like.

Detriment in the digital age Craig McClue takes us through Modernising Consumer Markets and extracts the key trading standards issues.

FEATURE

FEATURE

26

30

14 | Think Piece Craig McClue gives his reflections on the opportunity the Consumer Green Paper opens for a better Brexit.

24 | Academic Research A look at how findings from major sporting events in the past could help Birmingham strike the right balance in 2022.

34 | Best practice

Ben Richards tells us about the new CTSI guide showcasing excellence and innovation in trading standards practice.

40 | CPPD

A matter of principles Michael McCaw looks at the recent guidance on pricing practices and asks if it’s still too heavily based on principles.

Agents to get their house in order Helen Nugent looks at the Government’s newly announced measures to crack down on rogue managing and lettings agents.

INTERVIEW

FEATURE

36

48

This issue’s CPPD module gives you the knowledge you need to tackle the problematic world of car hire.

44 | Legal

Lawyers from 5 Paper Buildings ask if the famous R v M case really created new law or if it was all just fools’ gold.

50 | Last Word

Eleni Chalkidou kicks off a new regular feature asking ‘where would we be without...’ some of the basics of trading standards pratice. This issue: metrology.

www.JournalofTradingStandards.co.uk

In conversation with: Andrew Griffiths A few months in to his new role, we ask the Consumer Minister what his ambitions are for trading standards in the year ahead.

CTSI Symposium 2018 With little more than a week to go, we explore the new approach being taken at CTSI’s annual professional gathering.

| 07

The Journal of Trading Standards SUMMER 2018

Upfront 60 SECONDS

BREXIT

CTSI HERO AWARDS IN JUNE

CTSI has announced its Hero Awards are now taking place on 20 June at One Great George Street, London. MPs will attend to present awards to the hero winners in their constituencies, with the event sponsored by the College of Fellows.

RECORD COSMETICS FINE

A Dalston beauty shop found to be illegally selling dangerous skin-lightening products containing hydroquinone was handed a £59,793 fine – the largest ever issued for a breach of cosmetics regulations.

BREXIT THINK TANK UPDATE With the countdown to the UK’s departure from the EU continuing, CTSI held its 3rd Brexit Think Tank meeting in London on 5 April.

COW PROSECUTION

An investigation by Dorset Trading Standards has led to prosecution for a man who was shown on CCTV ‘kicking, vigorously pushing and violently pulling the tail’ of a cow.

NO COLD CALLING ZONES

Seven people prosecuted in Peterborough for a mobility products scam were found to be deliberately targeting ‘No Cold Calling Zones’ in the area.

08 |

MORE ONLINE The Journal of Trading Standards team was there to speak to some of the gathered experts and capture their thoughts in a video series available on the website at www.journaloftradingstandards. co.uk/brexit.

For now, Head of Policy Craig McClue brings us up to speed.

Having been set the task of considering the trading standards risks and opportunities from Brexit, subject matter experts have now produced important initial findings and policy positions.

CTSI will be publicising these and continuing to make sure that the need to preserve consumer protection and proportionate business regulation is central to Government thinking through the EU exit process.

Working with consumer policy and business partners, the Think Tank’s concerns centre on whether the UK can remain part of key networks in areas such as product safety alerts, cross border enforcement and access

to justice. The group is also concerned about the continuing lack of clarity for UK businesses on the type of regulatory future they will face – as divergence and uncertainty will inevitably bring costs.

The Think Tank has now made contact with a number of UK Government Department officials to reflect the concerns across the breadth of trading standards work.

Further meetings will be held throughout the summer as UK/ EU trade negotiations reach their critical stages before we leave the EU in March 2019.

Updates will be available in the ‘Brexit’ section of the Journal of Trading Standards website.

Summer 2018

The Journal of Trading Standards SUMMER 2018

BREAK DOWN

“Spending so little on market surveillance and consumer protection, with an economy as large as ours, simply does not make sense.”

Leon Livermore Chief Executive, CTSI

SourceS:

30

1. European Commission, 2015

The number of ADR providers approved by the CTSI in nonregulated sectors 3

2. Office for National Statistics 3. Modernising Consumer Markets

Green Paper, April 2018 4. CTSI Workforce Survey 2017

43%

Of services say they cannot deal with consumer detriment in their area 4

84%

Of UK consumers think traders respect their rights 1

£1.2bn

The average online spend of UK consumers per week 2

"Politicians are terrified of weakening the existing bricks and mortar-type regulation in a way that allows cowboys or fraudsters… to get at consumers currently protected by regulation” Kevin Barrow Partner at law firm Osborne Clarke

Continental Complaints As we prepare to leave Europe, will the UK European Consumer Centre (UK ECC) at least be grateful to say goodbye to some of these colourful complaints about products from across the channel?

HUNGARY

£1,000 The refund secured for a UK man after complaining to the UK ECC that he was unsatisfied with a hair transplant conducted on him while visiting Hungary. He had paid €4,200 for the procedure but was left unhappy, complaining that the results were ‘patchy’.

GERMANY

BULGARIA

NETHERLANDS

Knuckle sandwich

Palmed off

A UK woman got in touch with UK ECC to tell them about finding ‘human fingers’ inside a tin of dog food from Germany. The CTSI notified its German counterparts and the woman handed the offending items over to her local environmental health team.

A UK man didn’t get the results he was hoping for after paying €249 for a masturbation aid from the Netherlands and wanted his money back.

He asked the seller for a refund but they refused on the grounds that it had been removed from its packaging.

www.JournalofTradingStandards.co.uk

£150 The amount paid by a UK man for a ‘ghost-hunting’ device from Bulgaria.

He told UK ECC that the ‘multi-meter specifically for paranormal investigations’ didn’t work properly. The item was replaced but the man complained the new one didn’t work properly either.

MALTA

Waiting for flowers When a woman from the UK wanted to order a very special bunch of flowers online, her search eventually uncovered a stockist based in Malta. She ordered, but the flowers, sadly, never arrived. After contacting the UK ECC she secured a full €34 refund.

| 09

The Journal of Trading Standards SUMMER 2018

Upfront

Voices From The FronT Line

Alex Rankin TElfORd & WREKIn COUnCIl

My priorities are determined by the Intelligence Operating Model, but on a day-to-day basis this still has its limitations. This involves protecting the vulnerable from scams and rogue traders, delivering the regional feed programme and the animal health, partnership delivery plan. Most of my time is taken up by emails. Whilst technology has its clear advantages it also creates its own industry of problems. I wish I had more time to develop ideas or to at least write them down before they leave my head! This year I have started to get on and ‘do’ rather than wait to be asked or

10 |

My priorities are those of my local authority employer; tackling organised crime groups, market intervention on non-compliant products, business advice and working within the TS intelligence operating model. Most of my time is taken up assessing and dealing with non-compliant products and bringing economic operators into compliance.

I wish I had more time for product compliance in the UK. There are repeated observations both from legitimate businesses and from market surveillance professionals that the system

we have inherited is not quite perfect. Over the last year I have been working with fellow product compliance practitioners to attempt to provide guidance on best practice and to find “workaround” solutions solutions – particularly with issues that can become stuck. I make the most of resources by multi-tasking and trying to ensure meetings are directed and focussed. My area is difficult because product compliance covers the whole of the European Economic Area (plus a few countries that cannot make their minds up). This

“We are very rural with large areas still not able to get a mobile signal clearly this hampers any development through new technology.”

undertaking unnecessary tasks or doing things just because they’ve always been done. My area is difficult because we are not a huge county compared to the old Shires. We are very rural with large areas still not able to get a mobile signal - clearly this hampers any development of service delivery through new technology. This year I’ve learned not to worry about trying to please everyone but rather have confidence in what I am trying to achieve and doing it for the right reasons. If I had the year again I’d reduce levels of procrastination further to make the most of every opportunity.

given permission! Across my career I have seen the continued loss of experienced officers before their time combined with the decline of trainees and resource to train new officers. I make the most of resources by trusting my colleagues to do the right thing, for the right reasons at the right time. Encouraging all not to waste time or money by

“There are repeated observations from businesses... that the system we have inherited is not quite perfect.” year I’ve learned there are many UK-based expert practitioners who have a very good insight/experience in product compliance but who have not been brought in to assist with compliance issues. They should be encouraged. If I had the year again I’d do nothing different.

Gareth Walters MOnMOUThShIRE COUnTy COUnCIl

Summer 2018

The Journal of Trading Standards SUMMER 2018

We asked trading standards officers and managers around the UK, closely involved in the day-to-day activities of the profession, for a snapshot of trading standards from their perspective. Below are the highlights. Read the full answers on our website.

David Thomson South AyrShIrE CoUNCIL

My priorities are determined by a yearly service plan designed around national and regional trading standards priorities, taking account of local priorities which are determined by the wider Council. My priorities are product safety, (especially skin lightening cosmetics) letting agents, intellectual property, underage sales (especially knives),

“I have always been aware of pressures on resources. The career remains fascinating with a wide range of legislation to enforce.”

www.JournalofTradingStandards.co.uk

My priorities are to deliver key services that have a visible and substantial contribution to meeting the aspirations of the new administration’s ‘Programme for Effective Governance’. I don’t just want to present a mapping exercise that correlates what we do already to some appropriate heading in the Council plan. Most of my time is taken up planning for the future - and worrying about the survival of the service! I plan to take early retirement soon so my preoccupation is the ‘what ifs?’ at the moment. I wish I

had more time for one-to-ones with individual team members.

I try to attend as many team meetings as I can but there is no doubt that it is difficult to stay connected to every one of our 40 employees. This year I delegated more to the (very capable) team leaders. Across my career

door-step crime/rogue builders/ scams and tobacco control.

Most of my time is taken up by inspections, investigations and preparing case files, as well as leading other officers. I wish I had more time to place more details on the intelligence database MEMEX. Would love to see more time put into the car trade. Across my career I have always been aware of pressures on resources. The career remains fascinating with a wide range of legislation to enforce and the variety of work never ceases. I make the most of resources by giving myself an opportunity to think things

through properly and networking as widely as possible within the profession to pick up best practice and avoid repeating others’ mistakes. My area is difficult because we are a London Borough, so the traffic is always an issue. This year I’ve learned to use the Fraud Act 2006 over CPUT2008 where appropriate.

We achieved a two-year custodial sentence after a guilty plea against an established trader. If I had the year again I wouldn’t issue four Final Notices to letting agents within a week. Little did I know they would all appeal and I would face deadlines all on top of each other.

“What has stayed the same is my love of the job. And as cheesy as that sounds, I don’t apologise for saying it.”

the organisations we work for have changed and the profile of trading standards has, sadly, changed too. What has stayed the same is my love of the job.

And as cheesy as that sounds, I don’t apologise for saying it. I make the most of resources by being lucky enough to work in a local authority that has always appreciated the value and work of trading standards. This year I’ve learned that delegation isn’t easy if you are a control freak! If I had the year again I’d have taken a better brolly to the National Conference in Harrogate!

Cenred Elworthy LoNdoN BoRoUgH oF BARkINg ANd dAgENHAM

| 11

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Matt Allwright

Matt Allwright Matt is a journalist and presenter of the BBC’s Watchdog and Rogue Traders.

Lethal Weapon Too Matt talks zombie knives, macabre media shocks and harm reduction.

Drawing lines around people’s evil and good intentions is a really tricky job, and much harder for the media to report, but it’s the vital bit of this and any legislation.

Summer 2018

Here’s a term I’ve just had to google: ‘zombie knife’. This was a new one on me. It turns out your typical zombie knife has a black blade and DayGlo green handle, often adorned with the biohazard symbol. If you’re scratching your head at this idea then let me assure you: zombies aren’t real. Lethal weapons are now being sold to dispatch fictional enemies. And they’re going like hotcakes.

I didn’t know about zombie knives until I saw details of the Home Office’s plans, as part of the Offensive Weapons Bill to limit the sale and use of all sorts of scary things that either didn’t exist until the last couple of years, or, in the case of acid, have been around forever, but have recently found a new and appalling application.

The legislation is a pretty comprehensive study of things you don’t want to find under your teenager’s bed, including bladed fidget spinners, knuckle dusters and a new definition of what a flick knife might look like.

The media (that’s me, folks!) loves to fixate on these items. What’s better at drawing a gasp, than a children’s toy, which, at the press of a button, turns into a ninja throwing star? It plucks your audience’s outrage strings in an instant, and most of all, it’s visually arresting. The truth is, though, that fixating on these items is a distraction.

As acid has shown, you can do terrible damage with any number of seemingly innocuous household items, from bricks to bleach to cricket bats, and banning those things outright is impractical.

The much harder job is to identify how and when they are going to be used to cause harm and try to draw up laws which prevent that. Tabloid papers don’t talk much about harm reduction, but it’s what we should be focussing on. Is a zombie knife inherently more dangerous than, say, the telescopic lopping saw I’ve got in my shed?

No, but in buying it I’m clearly a middle aged man who can’t afford tree surgeons.

It’s much less likely that I intend to start wielding it in a public place. Drawing lines around people’s evil and good intentions is a really tricky job, and much harder for the media to report, but it’s the vital bit of this and any legislation. Possessing a corrosive substance in a public place, taking a knife onto educational premises and buying knives online to be delivered to a residential address are all behaviours which are hard to explain as innocent, so the Home Office wants to outlaw them.

Zombie knives, I’m afraid, have had it; illegal even if they never leave the house. A garish colour scheme and a threat which doesn’t actually exist, are, it seems, enough for them to be a menace to society.

| 13

Think Piece

Consumer Green Paper:

A blueprint for a better Brexit?

In a fast-moving, digital and global consumer landscape, could the debate around the Government’s consumer green paper help us to lay better plans for a post-Brexit UK that better supports its consumers and businesses?

Craig McClue Craig McClue is Head of Policy at CTSI.

The green paper is an ambitious conversation document that will spark strong debates over the summer.

14 |

If you cast your mind back to the spring of 2017, political turmoil had left consumer protection with a very uncertain outlook.

Brexit’s seismic impact was still being keenly felt some ten months after the vote, not least by consumer and business groups who questioned how more than forty years of EU laws and policies would be saved or replaced. Then, just as the Article 50 negotiations got underway, direction appeared when the Chancellor announced in his Budget that he would bring forward a consumer green paper, “to examine markets that are not working efficiently or fairly”.

Suddenly Theresa May felt she needed a ‘stronger hand’ to negotiate with the EU and called a snap election.

History shows this as a failed gamble and as the Government’s overall majority disappeared - so too did the consumer green paper. An unclear future for consumer protection turned decidedly opaque.

Opening a conversation Thankfully, spring one year on and there is more certainty, albeit limited, about what Brexit might mean for consumers.

Mercifully too the green paper is now restored with all the consumer protection improvements trailed in the 2017 Budget seemingly intact. Published in April

2018, Modernising Consumer Markets: A Green Paper is an ambitious conversation document that will spark strong debates over the summer.

For trading standards, the key issues are under “strengthening our system of public enforcement”. Acknowledging the asymmetry between local resources and national priorities, it has serious questions about the arrangements for trading standards’ capacity and powers. With a backdrop reduction of more than 50% in around 7 years, the decline in numbers and expertise has become critical and unsustainable. This is especially true if we wish to regulate businesses and protect consumers in the uncertain post-Brexit landscape. The capacity for local market surveillance, regulation, intelligence and enforcement must be maintained.

The green paper also opened an important debate on improvements to UK systems of alternative dispute resolution (ADR). As the title suggests, these are alternatives to the court system with statutory and private complaint schemes for consumers in areas such as energy, telecoms, finance and furniture. The paper highlights that the ADR system could be more effective with concerns about the length of time taken to reach decisions - or even a failure to adhere to

Summer 2018

Journal of Trading Standards

pills that mislead as to their commitment - ‘trapping’ unwitting consumers into unwanted payments and lengthy deals.

We also still have the possibility of tackling unfair terms such as those hidden in the impenetrable and lengthy agreements that we consumers ‘agree to’ simply by clicking a box online.

The paper will consider how to make contractual terms and conditions simpler, shorter and easier for consumers to engage with. This will perhaps act on the Government’s call for evidence on terms and conditions in 2016.

them. ADR is also constrained by a lack of engagement from vulnerable consumers and there are residual concerns that there is a bias towards business members.

Greater powers Retained from the published highlights of the 2017 green paper is the option to introduce civil fining powers for consumer enforcers such as the Competition and Markets Authority and trading standards services. At first these appear to add significantly to the enforcement arsenal, complementing the civil regime’s choices such as legal orders to cease infringements, corrective actions and redress. If implemented, no longer would enforcers be restrained

www.JournalofTradingStandards.co.uk

by binary decisions of prosecution or warning - but instead would have a range of proportionate civil and criminal actions to tackle rogue trading. The question remains though, might the slump in local enforcement resources reduce their effectiveness, leaving them to gather dust on the shelves of local services?

The green paper has clearly stated ambitions to target market failures and areas of consumer detriment.

In particular, there are long overdue proposals to curb the dodgy commercial practices known as ‘subscription traps’.

These are the deceptive use of continuous payment authorities (CPAs) for goods and services such as beauty products, gym memberships or ‘free trial’ diet

Brexit-tinted glasses Whatever the discussions on the future of UK consumer markets it must all be viewed through the prism of Brexit. The green paper reasserts the commitment to no less protection for consumers after we leave the EU - but also acknowledges that “the way consumer protections apply when buying across borders in future is a matter for negotiations.”

That is the dichotomy - how can the UK preserve domestic consumer protections and confidence in markets that are digital and global? As CTSI’s Brexit Think Tank found, the challenges for reciprocal EU enforcement, access to justice and data sharing networks are not unilaterally the gift of the UK. Throw in a degraded local capacity for enforcement, market surveillance and potential regulatory divergence and suddenly the outlook for consumer protection and business confidence becomes muddied again.

The UK is entering a crucial period in the Brexit negotiations with the EU trading future taking shape. An opportunity exists to use the green paper debate to align enforcement capabilities and routes to redress in the interests of consumers and legitimate businesses.

This is especially important if we want a better, clearer future for UK consumers in a world that is increasingly digital, fast and borderless.

Read Craig’s full breakdown of the green paper on p20.

| 15

Cover Story

by Matthew Chapman

Safety & Standards: the road ahead A long-term campaign to establish a national organisation for product safety was given a final push by the tragic events of 2017 and at the start of the year, the new Office for Product Safety & Standards was born.

Will it provide the support the profession needs?

16 |

Summer 2018

Journal of Trading Standards

In January, the Government revealed it would launch the Office for Product Safety and Standards (OPSS or Safety & Standards) with immediate effect as part of its response to a working group on product recalls and safety established

by Margot James MP in October 2016. As he unveiled the new Office, Consumer Minister Andrew Griffiths MP, acknowledged that the tragic events at Grenfell Tower and the Shepherd’s Bush fire had reinforced the need for a robust product safety system.

It is reported that the deadly Grenfell inferno was initially caused by a faulty Hotpoint fridge-freezer, while the fire at Shepherd’s Bush, an ominous precursor to Grenfell, was sparked by an Indesit tumble dryer manufactured by Whirlpool, the manufacturer of the Hotpoint brand.

Consumer group Which? launched a judicial review into Peterborough Trading Standard’s team after the Shepherd’s Bush incident, which happened a year after a fire safety warning was issued for Whirlpool tumble dryers.

“A very small local authority with limited expertise was expected to make a very difficult decision on its own that has international implications in relation to product safety,” says Mark Gardiner, a CTSI joint Lead Officer for Product Safety and Chief Executive of Market Surveillance Specialists.

In giving evidence to MPs last year CTSI Chief Executive Leon Livermore warned of the damage caused to product safety by council funding cuts and called for an overarching product safety body. His wish was granted with the setting up of Safety & Standards, which has a remit to build ‘national product safety capacity’ for non-food consumer products (excluding vehicles, medicines and medical devices, or workplace equipment). However, the decision has been a long time coming and was likely only expedited by Grenfell.

“I think Grenfell was the final push but the Lynn Faulds Wood report was the catalyst,” says Christine Heemskerk, another CTSI joint Lead Officer for Product Safety and Chair of the Consumer and Public Interest Strategic and Advisory

www.JournalofTradingStandards.co.uk

“BEIS sought to manage expectations at launch by stating that ‘not all aspects will be fully operational from day one’” Committee at the British Standards Institute. Former Watchdog presenter and consumer champion Faulds Wood carried out an independent review into the recalls system, published in February 2016.

A co-ordinated approach “In the UK there is always that slight problematic link between national strategy and local delivery,” says Gardiner. “A number of us have been suggesting for the last five years that there needs to be central co-ordination and central support for local trading standards departments. These unfortunate incidents were able to demonstrate just how difficult it was without this central co-ordination for local government to deliver market surveillance in relation to product safety.”

Standards & Safety has the potential to provide a more joined-up approach to product safety and provide local trading standards teams with much-needed support. Services have been cut to the bone across the UK with a reduction in headcount of over 50%, and some authorities now have no product safety specialists, relying instead on generalists.

Gardiner argues the current system does not work because local politicians prioritise funding for vote-winning issues like education and social care, while within trading standards departments themselves there is fierce competition for budget. This can mean departments going after the ‘easy wins’, like rogue traders, rather than taking on multinational corporations over product safety.

“Big strategic issues in relation to product safety became everybody else’s problem and therefore nobody’s problem,”says Gardiner, “because everyone passes the buck.”

| 17

Cover Story

by Matthew Chapman

Up in the air Safety & Standards, which sits within the Department for Business, Energy and Industrial Strategy (BEIS), hopes to reverse this. The department sought to manage expectations at launch by stating that “not all aspects will be fully operational from day one”.

There will be no changes to the roles of local authorities and other market surveillance authorities, but the Office will provide “specialist services centrally to support consistent national enforcement”.

It revealed its first priorities were the setting up of an ‘incident management capability’ to respond to national product safety issues, and improving the accessibility of information on the government’s product recall web pages.

One action it has already carried out is the launch of a voluntary code of practice on recalls for both businesses and trading standards teams. Other pledges include swiftly identifying emerging issues and co-ordinating work on a national scale by drawing on pooled intelligence; providing consumer facing product safety information and advice; providing the specialist capability needed to test products and assess safety risk; and providing technical and scientific expertise and advice. It is early days yet and at the time of writing there are still questions as to how these proposals will work in practice.

“They are very generic and vague,” says Heemskerk. She believes that the ideal solution would be for Safety & Standards to replace the organisation previously known as Local Authorities Co-ordination of Regulatory Services (LACORS), which provided a co-ordination and expertise role.

“OPSS has no powers over individual local authorities to require them to consult, undertake certain activities or indeed allocate funds to trading standards functions,” says Heemskerk. “Ideally I’d want OPSS to have a policy lead, coordinate product safety activities amongst local authorities, provide funding for testing and sampling, provide expert technical assistance to ensure officers are interpreting legislation uniformly

18 |

Top Left Growth in online shopping and an increasing rate of innovation means the UK is dealing with more products than ever before.

Top Right Products are less and less often provided through retail outlets, instead coming direct from distribution centres that could be based anywhere in the world.

Bottom Right The Grenfell Tower tragedy showed how devastating the results of even one product failure can be.

Big strategic issues in relation to product safety became everybody else’s problem and therefore nobody’s problem because everyone passes the buck.

Mark Gardiner CTSI joint Lead Officer for Product Safety

and consistently, provide legal assistance to tackle large companies’ legal teams, and practical assistance if national issues arise such as with hoverboards.”

BEIS has hinted the role of Safety & Standards could evolve in the future and that it could become “an arm’s length independent body” that is funded separately. Currently the Office has a budget of £9m at its disposal for the first year and £12m in future years, but it is unclear as yet how that will be divided.

The number of people that will eventually staff Safety & Standards is as yet unknown but it will include scientists as well as experts in incident management and consumer recalls. The newly formed Office is partly a rebranding of the Regulatory Delivery department, but officials have confirmed all of the £12m annual budget is ‘new’ money.

Local pressures Hertfordshire County Council’s head of protection, Andrew Butler, believes the

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Journal of Trading Standards

Office was necessary to bring product safety into line with other areas of trading standards’ work such as food safety, which has its own national agency in the form of the Food Standards Agency.

“There was no such national coordination for product safety and given the importance of the issue and the fact other areas were getting support we certainly felt it was needed,” says Butler.

Although his own trading standards team is well resourced - at least compared to other areas of the country - he believes Safety & Standards could play an important role in relieving pressure on product safety officers.

“Some local authorities won’t be dealing with high-profile product safety issues every day, so to have a body that can support you through that process, share best practice and help you understand the risk - and assess that risk - is highly important,” says Butler.

“A national co-ordination of proactive work around the sampling of products would be great so local authorities are not duplicating work and targeting our resources in the right areas.” Butler adds that extra funding to help sampling “would be welcome”.

“There have been savage cuts to trading standards. This has made it even more important to try and gain some of the economies of scale of doing some national co-ordination,” says Gardiner. “There will always be a massive shortfall of staff but I certainly think the development of a national body to assist trading standards is something which will allow more to be done with what little there is.

“It will help the situation but in the foreseeable future there will be the need for more resources. I was training a trading standards department on electrical product safety and whilst they were quite a well-funded department they still did not have enough money to do safety testing or have enough staff resource to do full investigations.”

The Brexit question Another issue that is looming large on the horizon is Brexit, an issue that Livermore

www.JournalofTradingStandards.co.uk

warned last year could sound the death knell for the current product safety system. Butler says Brexit and what it means for trading standards legislation is second on the list of businesses’ biggest concerns, second only to data protection.

“Businesses are asking us the questions and we do not necessarily have all the answers at this stage,” says Butler.

He is optimistic that Brexit could provide an opportunity to beef up legislation and “improve consumer protection”.

However, this optimism is not necessarily shared by Heemskerk. She warns that if Britain leaves the Customs Union to strike individual deals with other world powers, there could be “divergent standards at best and lowering at worst”.

BEIS says that the new Office will enable the UK to meet the evolving challenges by helping the country to “ready itself to leave the European Union, ensuring that appropriate border checks continue to be carried out”.

Gardiner, in his private sector work, has gained knowledge and insight on product safety regulation outside of the EU through advising countries in the Western Balkans.

“There are significant challenges in just cutting and pasting regulation,” says Gardiner. “Current UK regulations are designed to work within a European framework and once you try to externalise them then you have to come up with other systems.” However, Gardiner believes the primary problems and challenges for product safety come down to resourcing, expertise and competence rather than the regulations themselves.

Safety & Standards has been a long time coming and there is still much to play for in terms of how it develops. It is beyond doubt that a national organisation was needed because product safety within some local authorities is at breaking point. As Grenfell has proven, this is potentially a matter of life or death. But are product safety experts now more optimistic as a result of the foundation of Safety & Standards?

“Optimistic is a bit strong,” Gardiner told us. “‘Hopeful’ is the word I would use.”

| 19

Consumer Green Paper

Opinion from Craig McClue

Detriment in the

digital age With the publication of its consumer green paper in April, the government kicked off not only the 12-week consultation period but, at trading standards services departments the length and breadth of the UK, some pretty spirited conversations.

2010-2011

20 |

2011-2012

2012-2013

2013-2014

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Journal of Trading Standards

If you thumb through Modernising Consumer Markets, the Government’s Green Paper, you may notice that only Chapter 3 has the word ‘digital’ in the title. However, as you absorb the details you soon find a paper that is extremely ambitious about data and digital markets and everything that means for modern consumers. Throughout its five chapters and 21 questions the themes of online platforms, personal data and digitisation abound.

Green papers are a starting point for stakeholder discussions and this one has really delivered, after more than a year of speculation. Modernity, data technology and redress are core themes - but as trading standards colleagues around the country read through the questions, number 16 will resonate most deeply: “What changes are needed to ensure local and national enforcers work together within an effective framework for protecting consumers?” With local services on their financial knees, that is the question most likely to spark debates within trading standards before the 4 July response deadline.

I am concerned that digital technology and data can be used by energy firms to exploit consumers, rather than aid them.

Steve Playle CTSI’s Lead Officer for Energy

100 Trading standards spend per consumer 2010 - 2016 Percentage of councils

80

Key

60

n n n n n

> £4.00 £3.50 to £3.99 £3.00 to £3.49 £2.50 to £2.99 < £2.50

40

20

0 2014-2015

www.JournalofTradingStandards.co.uk

2015-2016

Source: National Audit Office

Portability and switching There’s no surprise that a Conservative Government puts the benefits of the markets, innovation and competition at the core of its thinking. Encouragingly though, market failures are recognised in sectors such as energy, telecoms and financial services. There remains a worrying inertia to switching suppliers among vulnerable consumers who are then exposed to discriminatory higher prices and poorer service. Putting them in control and making consumer data portable between suppliers is explored as a solution in regulated markets.

Steve Playle, CTSI’s Lead Officer for Energy had some early insights and concerns: “Exploiting new technologies to benefit consumers is a noble aim.

However, I am concerned that digital technology and data can be used by energy firms to exploit consumers, rather than aid them, particularly through targeted and discriminatory tariffs. For example, the smart metering programme threw up age-old problems such as energy mis-selling and aggressive tactics and has introduced new barriers to switching and choice. Questions also remain about whether vulnerable consumers fully understand new digital technologies and big business’ track record on data security has not been good.”

The sharing economy Digital platforms bring consumer choice, speed and business innovation. Nowhere has this been more apparent than in the growth of what has become known as the ‘collaborative’ or ‘sharing’ economy or ‘peer-to-peer’ services. Apps that let consumers ‘share’ anything - from properties to cars to financial loans grew from £2.1bn to £7.4bn in just two years, eating considerably into traditional business-to-consumer markets. The green paper asks: if legal protections are centred on consumers’ contracts with businesses, what might be needed to protect them in peer-to-peer markets?

What is also acknowledged is the

| 21

Consumer Green Paper

Opinion from Craig McClue

growing importance of online ratings and customer reviews as a vital barometer for service quality and competition, not just in the peer-to-peer sector, but across all online platforms.

The free market online Another interesting area for debate is the ethics of data manipulation for price personalisation - or discrimination, depending on your view. For example, how can it be that two consumers receive very different online prices for the same product or service?

In digital commerce the free-market principle that prices go to where the market can bear is set by sophisticated online algorithms and website cookies generating ‘personal prices’.

But is it ethical? Well, if you are charged more for your morning coffee than others because the chain has assessed that you really wanted it - and will probably pay more - you’re likely to be quite aggrieved. Yet, that is what happens in online markets every day. The paper questions in what circumstances such practices should be used and whether they cause harm to consumers.

CTSI’s Lead Officer for e-Commerce David MacKenzie welcomes the debate.

“As the markets for online trading grow in all their guises I think it is vital we have a proper look at the protections offered to consumers,” MacKenzie says.

“There is definitely a need to ensure that consumer data is used in a much more transparent way. While changes to data protection laws will facilitate this, more can be done to show exactly how our online information is collected and used. We need to strike a proper balance that allows online markets to flourish, but not at the expense of allowing fraudulent practices or unethical manipulation of consumers”.

Consumer rights Although online contracts are forged in the billions every day, few consumers make themselves aware of the full details of the deals they strike.

22 |

Regulated Markets In Numbers

10%

Of the poorest households’ expenditure is going on water and energy

90%

Of customers could gain financially by switching banks

£300

Overpaid per year by customers of the six largest energy companies

43%

The jump in price when an average broadband fixed term ends

There’s no surprise that a Conservative Government puts the benefits of the markets, innovation and competition at the core of its thinking.

Failing to read or understand terms can lead to consumers being duped into more expensive or longer deals when onerous buried clauses and penalties come back to bite. The paper explores how the presentation of terms, particularly key or potentially harmful terms, can aid comprehension for consumers.

The paper also hopes that a combination of the above and action from the Consumer Protection Partnership might help bring an end to the scourge known as ‘subscription traps’. These are of course the baited ‘free trial’ or ‘reduced price’ offers for everything from slimming pills to beauty products that are designed to trap unwitting consumers into lengthy subscription contracts.

Often originating on social media, consumers who hand over their card details for their ‘free’ offers may not realise they have been signed up for ongoing payment commitments. Only after seeing the strange payments leave their account do they realise they have been misled or conned.

And then there’s Chapter 4 - Improving enforcement of consumer rights. It starts by exploring the benefits of alternative

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Journal of Trading Standards

“Local services might be incredulous at the suggestion they retain 75% of all enforcement resources despite losing more than 50% of their numbers in less than a decade.”

Trading Standards In Numbers

75%

Cost of consumer protection still supplied at the local level

50%

Reduction in trading standards resources over the decade

£15bn Total estimate of consumer detriment

£4.2bn

Of detriment requires a national enforcement response

www.JournalofTradingStandards.co.uk

dispute resolution (ADR) systems and their importance as a substitute to going to court.

Published alongside the green paper is the government’s extensive research highlighting issues hindering the current system. The green paper asks four questions about improving ADR models designed to improve take-up, quality systems, business engagement and even automatic access in the most harmful sectors.

The £10.8bn question And so, to “strengthening our system of public enforcement” and that thorny question 16. Local services might be incredulous at the suggestion they retain 75% of all enforcement resources despite losing more than 50% of their numbers in less than a decade.

The issue, however, is that the nature of consumer detriment has changed as commerce has become digital, regional and national. It is estimated that of the £15bn of consumer detriment only £4.2bn requires a national enforcement response.

Despite this, the paper asserts there is no capacity or incentive at the local level and little power and accountability at the national level to effectively tackle it. The Government’s theoretical position is that: “a stronger system would be one in which there was a strong national body with statutory powers and duties that could provide leadership and specific expertise and lead complex national enforcement cases where necessary”.

Is that the answer? Early views from the Association of Chief Trading Standards Officers and the National Trading Standards Board are supportive of the move if it retains an integrated trading standards system and does not create a separate central delivery body The paper also suggests this shift would allow local services to better focus on local priorities and to continue to feed intelligence to national bodies.

Worryingly though, that does little to address the current path of

haemorrhaging numbers and loss of critical expertise down which trading standards is headed.

CTSI Chief Executive Leon Livermore is in no doubt: “The green paper starts some very important debates about digital markets and redress, but fundamentally our focus is on ensuring we consult widely with members, branches and stakeholders to put forward the best enforcement framework arrangements for trading standards,” Livermore says.

“What cannot be denied is that the system now has a critically reduced capacity for enforcement and continuing losses are unsustainable”.

Civil penalties Finally, the paper announces the intention to introduce ‘civil fining’ powers for enforcers such as the CMA and local trading standards services.

While they are not a substitute for criminal powers they are broadly welcome and augment the civil enforcement options to seek infringement cessations, redress and other enhanced measures.

Likely to be limited to a percentage of annual turnover of the business, they will be particularly welcome in large national enforcement cases. While they may provide greater choice and flexibility, the question remains, at the local level: what use are extra civil powers, without resources, when trading standards services are already struggling with their current enforcement investigations?

For CTSI, the green paper opens up timely debates across a number of important areas. There will be a need to consider deeply and consult widely.

As Lead Officer experts pour over the technical questions there are fundamental issues on the enforcement arrangements for trading standards.

We need to take the opportunity to strengthen national and local relationships and ensure we develop a sustainable and effective trading standards enforcement framework – one that retains capacity and expertise.

Let the discussions begin.

| 23

Academic Research

by Dr Michael Duignan and Lewis Walsh

Game of Zones:

balancing local and global needs Major sporting events pose extraordinary challenges for managers trying to balance the demands of event owners with the needs of incumbent host-community stakeholders.

The interests of host communities play a central role in legitimising major events and the related public expenditure. Yet the interests of external official sponsors, supporters and suppliers are also crucial, providing the financial underpinning.

When these interests conflict, both critical scholarship and governmental reporting 1 show that the outcome can be communities finding themselves ‘invisibilised’ and ‘side-lined’ 2.

In the lead-up to and during the ‘live staging’ periods, local environments are temporarily re-configured and overlaid with new legal exceptions and regulatory demands. Event owners (for example, the International Olympic Committee (IOC)) require candidate-come-host cities to cede aspects of national sovereignty to abide by contractual obligations (a form of ‘situational law’).

By doing so, they effectively create a ‘state of exception’ 3 – whereby temporary legal and regulatory deviations are put in place to enable the project to deliver on its organisational objectives (for example, the London Olympic and Paralympic Games Act, 2006).

Alice Nugent, Programme Manager (Advertising and Trading) at the Olympic Delivery Authority echoes this point, saying: “the requirement to legislate actually came from the IOC and was an integral part of the UK winning the bid to host the Olympic and Paralympic Games”.

Once inscribed into law, very little can be done to change the rules – the script

24 |

becomes a fait accompli to be played out over targeted community stages 2.

Neil Coltart, Group Manager (Trading Standards) at Glasgow City Council confirms his experience of such legislation at the Glasgow 2014 Commonwealth Games: “whilst local authorities and other regulators can influence its provisions through consultation processes, once it is in place they can only seek compliance and take enforcement action if necessary.

Regulators cannot choose which legislation they enforce.”

‘Context’ and ‘project’ territories To deliver sporting events and related cultural programming and commercial activity, everyday public spaces (‘context territory’) are sequestrated, territorialised and extracted from public use 4. In other words, they become privatised goods primarily leveraged by the event (‘project territory’). Withdrawing public access to public spaces poses a dilemma often ignored by Games organisers: the potential disruption or displacement of everyday resident and visitor interactions with local businesses 5.

This can have a significant impact not only on short-term business performance, but also on longer-term competitiveness, survival and sustainability of small businesses 6. The authors’ research at London 2012, specifically across the host community of Central Greenwich repeatedly found small businesses side-

Right: London 2012 saw the host community of Central Greenwich take a back seat to the regulatory requirements of official sponsors and suppliers.

lined as a result of Games planning.

One local restaurant owner said: “The consequences of this walking route and barrier from the station was absolutely deadly for business… 50,000 people were managed into the venue and out again without having any ripple on the local area… it was devastatingly quiet, all you could see was the shop owners looking.”

Clearly, laying the new ‘project territory’ over existing ‘context territory’ can be an uneasy process posing difficult management and regulatory challenges for those involved, especially when initial bid narratives - and the very existence of the event itself – was predicated on promoting positive outcomes for both local residents and local businesses.

Birmingham 2022 projects a similar ambition: to be open and welcoming to a global audience, celebrating local environments, placing ‘rejuvenation’ and ‘regeneration’ as core objectives.

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Journal of Trading Standards

“Once inscribed into law, very little can be done to change the rules – the script becomes a fait accompli to be played out over targeted community stages.”

Future event contexts need to at least identify the dichotomy between the rhetoric of inclusion and the reality of exclusion (denial of the problem is a major structural barrier) so that an honest conversation can take place to generate localised and situational solutions across different cultural and sporting contexts.

If supporting local interests forms a central objective of the event, should they be given equal weight? Does the event have a ‘social contract’ to uphold promises of inclusion? And is it even possible for local small businesses and regional producers to have a level playing field and share centre stage with global sponsors? If so, what would this look like?

Enforcement ‘lite’ Following our empirical research into Rio 2016 management and regulation 7 , we argued for more deregulated - and where appropriate: de-securitised - event

www.JournalofTradingStandards.co.uk

spaces: effectively, a ‘lite’ version of what are highly circumscribed environments.

We argue that the conflict of global and local needs can be managed through three approaches.

First, regulatory informality: on-theground trading standards enforcement officers may use discretion to permit certain practices to support local inclusion. Second and third, slowness and relaxation, refers to a wider re-thinking and re-configuration of global event spaces to encourage greater interaction between visitors, local producers and small businesses.

Lessons can be learned from Rio 2016, which fostered ‘glocalised’ platforms where corporates and smaller, local vendors sat side-by-side offering a balanced portfolio of products for consumption 7. Relaxing spatial, security, advertising and trading conditions to permit local interests to be included is

central. On the other hand we concur with Alice Nugent; who says: “…event zones are beneficial to local communities as these prevent unauthorised traders and/or scammers flooding the area and potentially taking business away from legitimate long-standing local businesses and communities” With a significant number of local organisations involved in the design and delivery of Games regulation (Birmingham City Council, Trading Standards, Local Enterprise Partnerships, Combined Authorities and many more) the city has a unique opportunity to consider these attributes and the continued need to ‘glocalise’ event spaces, and achieve the very organisational objectives that justified the event in the first place: inclusive and positive local and regional developmental effects for host communities, both residents and businesses.

ABOUT THE AUTHORS Dr Michael Duignan is Senior Lecturer in Management at Coventry Business School.

Lewis Walsh is an Associate Lecturer in International Business at Lord Ashcroft International Business School, Anglia Ruskin University.

References 1. House of Lords, 2013 | 2. Raco and Tunney, 2010, 3. Walsh and Duignan, 2017 | 4. Smith, 2013 5. Pappalepore and Duignan, 2016 | 6. Duignan, 2017 | 7. Duignan and McGillivray, 2016

| 25

Pricing Legislation

by Michael McCaw

A matter of principles

26 |

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Journal of Trading Standards

Because regulations around pricing practices are principlesbased, difficulties arise for traders and enforcement officers.

It’s created a need for up-to-date, reliable direction on how to interpret the rules.

Regulations governing markets are often vague, in order to allow enforcement officers at local and regional level to interpret the rules pragmatically. While the EU and the UK Government have increasingly moved towards applying that theory, it can allow for abuse and mismanagement of the guiding principles by market participants, and creates the need for up-to-date guidance from industry bodies and government-backed institutions.

Nowhere is this more the case than in the pricing realm. In the UK, the area is governed for the most part by the 2008 Unfair Trading Regulations.

These principles-based regulations avoid prescriptive rules, focusing more on a set of general principles for fair trading.

The assumption underpinning the rules is that traders hold the responsibility for ensuring that their pricing practices do not mislead consumers, and the legislation does not attempt to identify every single fair or unfair pricing practice – which would be impractical and could lead to ‘safe harbour’ abuse. But that, in itself, raises problems.

Over the past twenty years, experts say, pricing practices - the way in which goods and services are presented to consumers - have become more convoluted as access points have grown and different sales approaches have entered the fray.

In the UK, competition among market players across a number of industries has become much more aggressive, leading to dynamic pricing strategies that can perplex and mislead consumers.

That’s according to Wendy Potts, director of Legal Eyes, Chair of the Business Members Group (BMG) of The Chartered

www.JournalofTradingStandards.co.uk

Trading Standards Institute (CTSI) and Lead Officer, Fair Trading (Pricing).

“I think there has been some advantage taken in the interpretation of the legislation. It isn’t always interpreted fairly for the consumer,” she says.

“We’ve got very aggressive marketing in the UK - certainly compared to the rest of the European Union. I think it could be done better. The legislation we’ve got is principles-based so it’s difficult for officers to force advertisers to operate any better or be any clearer and because there’s so little money - with so many cuts at local authority level - the opportunity or the likelihood of prosecution is low. It’s not seen as a high-risk area in terms of consumer detriment.”

Updated guidance Given the nature of the regulations and the changing market conditions, up-todate guidelines must be presented to the market and enforcers. In April this year, Potts co-authored just such advice, in the form of the Guidance for Traders on Pricing Practices, which was produced by the CTSI at the request of the Department of Business, Energy and Industrial Strategy (BEIS) and the Consumer Protection Partnership (CPP).

The document replaces the 2010 Pricing Practices Guide, produced by the then Department for Business, Innovation and Skills. That guide was not aligned enough with the legislation, however, and did not provide enough flexibility to cover new and developing markets, says Potts.

And markets have indeed changed over those eight years, but the loss of wellestablished rules and exact guidance - for discounted pricing periods for example

“In many ways, a more complex marketplace inevitably leads to less prescriptive guidance and more emphasis on interpretation.”

- and the inclusion of highly interpretative phrases such as ‘significant sales’ and ‘significant proportion’ put the onus even further on to enforcers. In many ways, a more complex marketplace inevitably leads to less prescriptive guidance and more emphasis on interpretation.

“I think pricing has become more complex, but then we live in a more complex world where consumers have the opportunity to purchase things through many different sources: you can buy online, you can buy from a supermarket, you can buy from a market; the marketplace has become a lot more complicated so, along with that, pricing has become a lot more complicated as well,” says Potts.

Appointed in April to the BMG’s Chair role, Potts has sympathy for those who initially framed the legislation, but the fact that the principles are meant to work across multiple sectors doesn’t make things easy for those in the market aiming to stay within the confines of the rules - or for the enforcers.

“It makes it more challenging to legislate because it’s a lot more difficult to decide on a piece of legislation that would cover every single sector,” she says.

“When you’re talking about legislation

| 27

Pricing Legislation

by Michael McCaw

that would cover the travel industry, that would also cover the furniture industry; it would also cover more service sectors, hotels, insurance, all those sorts of things.

“It’s a very complicated field out there - with more consumer choices - which has created more aggressive pricing practices.”

The online marketplace Potts says that technological changes – and in particular the rise of the online marketplace – have made things a lot more difficult in terms of enforcement. For instance, companies may be based in one jurisdiction but selling in another, making it almost impossible for government officials to pursue actions.

Further, online markets are incredibly fast-moving, with broader platforms such as Amazon and eBay allowing both company and private traders to establish a customer base from which they could potentially advertise inappropriately, sell goods or services illegitimately, and then close their account within an hour. In instances of this nature it can be difficult to track down the entity and creates a litany of other problems, says Potts.

As well as these cases in which consumers are misled on a one-off basis, so-called ‘subscription traps’ - in which a shopper has been led to believe they are agreeing to a single purchase but in fact have signed up for multiple purchases over an extended period of time – have grown as quickly as the internet itself.

Potts suggests this happens in smaller industries, where individual consumers are targeted. She gives the example of a recent case in which a consumer had signed up for a face cream, believing they were getting a substantial reduction in the

28 |

Right: More online shopping means goods can be delivered crossborder and sold through multiple platforms even when they are coming from the same distribution warehouse

It’s a very complicated field out there - with more consumer choices - which has created more aggressive pricing practices Wendy Potts, BMG Chair

one-off purchase price. The savings had indeed masked the fact that the buyer was signing up to the offer every month. “I think the method of online advertising is fraught with issues,” says Potts.

As the dotcom boom took shape and the online marketplace surged, regulators and government bodies struggled to keep up. The market quickly became rife with predatory pricing practices, involving misleading price display tactics such as ‘drip pricing’ - in which hidden charges are added on top of the advertised rate towards the point of sale - which were notably popular among airlines. As more

companies entered the marketplace, so did the opportunity for consumer detriment, says Potts.

Pricing practices arms race However, as the sophistication of these practices rose, so too did regulators and enforcement officers’ knowledge of what needed to be done, meaning that some of the practices have been stamped out. Better pricing practice standards have been encouraged across a number of industries, and engagement with organisations such as the CTSI and industry experts have paid off. Those

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Journal of Trading Standards

“Competition among market players across a number of industries has become much more aggressive, leading to dynamic pricing strategies that can perplex and mislead consumers.” entities have learnt much about the changing nature of the market, and are aware of the need to stay ahead of it.

“I believe it has got slightly better with advice and recommendations that have been made to businesses in the last few years,” says Potts.

“Things have got better in the supermarkets, and certainly in the furniture sector. The drip pricing that Ryanair and other airlines used to use has got better. It’s such a fast moving sector that we need to keep an eye on things quite closely. For instance, mobile payments are relatively new - we need to keep an eye on how that develops.”

A mixture of regular advice on the regulations provided by government bodies, guidance papers such as those published by CTSI on Business Companion, and a number of highprofile cases have helped direct market participants on what fair pricing should look like, and made consumers more aware of the pitfalls. Drip pricing is being phased out, and companies such as Ryanair no longer advertise flights for 99 pence only to add a variety of taxes and charges as the purchaser nears completion of the transaction.

Bodies such as the Competition and Markets Authority (CMA) have brought the airline industry together, forcing them to agree to certain standards - and to stick to them. Which? magazine brought an action against a large supermarket recently, leading to better standards in the supermarket sector. Social media also provides a voice for consumers who have been scammed by companies utilising misleading pricing practices, meaning that knowledge of such behaviour spreads quickly. But while standards are getting

www.JournalofTradingStandards.co.uk

better, authorities are struggling with recent cuts - stretching the workload for enforcement officers and making it more difficult to pursue cases. And the problem enforcement officers face in challenging and advising businesses on highly principles-based legislation is one that is difficult to overcome, says Potts.

Future opportunities Potts says: “the issue that trading standards officers have had since the legislation and the new guidance is that lack of descriptive guidance - to point at a requirement and say ‘you must do this.

“I think that’s something that’s in the legislation that might not be changed.

But hopefully having principles-based rather than prescriptive-based means that the requirements can be adapted across different sectors and across different platforms that people buy from.”

In a perfect world, case law would develop to provide some definitive understanding of the current rules.

Failing that, there is some hope that with withdrawal from the EU the political winds will change and both market and enforcement officers will be provided with clearer terms by which to determine the appropriate behaviours around how prices are presented.

“As legislation has moved toward a more principles-based approach perhaps there’s an opportunity with Brexit... for the UK to change things.” says Potts “If the country feels that things are in such a state that changes would help businesses and better protect the consumer - maybe there would be a change. But I don’t know if that’s high up on the priority list for the Government after Brexit.”

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Property Lettings

By Helen Nugent

Letting agents to

get their

order

30 |

Summer 2018

Journal of Trading Standards

On 1 April, the Government announced a nationally recognised qualification for lettings agents and a mandatory code of practice – backed up by criminal charges and overseen by a new independent regulator – to tackle the sprawling issue of rogue agents. For trading standards officers keen to clean up the lettings environment the changes can’t come soon enough.

We’ve been here before. The Government promises to crack down on rogue letting agents and clean up the industry. It pledges to introduce criminal charges and protect consumers from unscrupulous landlords more interested in making money than saving lives.

And so, on Easter Sunday, when ministers announced all of these measures (and more), the statement wasn’t greeted with universal thrill. In fact, this isn’t even new legislation. This is another working group comprising representatives of letting, managing and estate agents, tenants and regulators.

We might see the final proposals early in 2019, meaning that a change in the law could be some way off.

Alex McKeown is joint Lead Officer for Property and Lettings at the CTSI. Is she optimistic that the Government’s comments will lead to a root and branch overhaul of the lettings sector?

“No,” McKeown says. “The problem is huge. There needs to be more financial input into trading standards to get us trained because trading standards officers do not understand a lot of this legislation at the moment and a lot of chief officers don’t want to enforce it.”

However, she adds: “It’s a step in the right direction. The proposals for actually having a qualification for people to be a letting agent. With estate agents it’s far more regulated, you have to jump through a lot more hoops. The fact is, more and more people are renting properties and

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fewer people are buying, and so much money is being taken. It does need to be tightened up.”

Tackling the rogues Under the proposals for a new mandatory code of practice and a properly-recognised qualification for letting agents, the Government says that those who fall foul of the code will be subject to criminal charges. There is talk of a new regulator to implement this including scrutiny of agents who levy unwarranted and punitive fees or carry out shoddy repairs.

Heather Wheeler, Minister for Housing and Homelessness, has said: “Most property agents take a thorough and professional approach when carrying out their business, but sadly some do not. By introducing new standards for the sector, we will clamp down on the small minority of agents who abuse the system so we can better protect tenants and leaseholders who find themselves at the end of a raw deal.”

McKeown says that the problem of rogue agents is far more widespread. “The fact is that most letting agents don’t know how to run a lettings agency. So many letting agents have no clue as to what they have to comply with. It’s worrying. In Tower Hamlets there are 500 agents and I would say that 75% of them didn’t even know what a redress scheme was.”

Andrew Coulter is also a joint Lead Officer for Property and Lettings at CTSI. Like McKeown, he welcomes the Government’s consultation and points to key issues identified, such as problems in the leasehold sector, concerns around the consumer protection regulations in relation to material information, referral fees in property sales, and the competency framework for both letting and estate agents.

“I think it’s a bit of a wait-and-see at the moment as to what comes out of these working groups that the Government is setting up,” he says. “But I think the main focus and the thing that they’ve been looking at is the potential for a single regulator. The role of the ombudsman schemes might be looked at as well. There’s a lot riding on all this. But whether it comes to fruition remains to be seen. We can but hope.”

It’s a step in the right direction… more and more people are renting properties and fewer people are buying… It does need to be tightened up Alex McKeown, joint Lead Officer for Property and Lettings, CTSI

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Property Lettings

By Helen Nugent

A level playing field for lettings Also published on Easter Sunday was the Government’s response to its consultation on the launch of Client Money Protection schemes for letting agents. Legislation will now be brought forward to introduce privately-led schemes. There will also be penalties of up to £30,000 for agents who fail to comply with the scheme.

In addition, a report issued by the Housing, Communities and Local Government Select Committee on 19 April called for a review of laws surrounding private rental standards, not least greater political leadership by councils to address low standards in the sector.

The committee also wants The Law Commission to review the legislation surrounding the private rental industry.

Committee chairman Clive Betts says: “Local authorities need the power to levy more substantial fines against landlords, and in the case of the most serious offenders, ultimately be able to confiscate their properties.”

David Cox, chief executive of ARLA Propertymark, says that the association, the largest professional body for letting agents, is hugely supportive of the Government’s plans to crack down on rogue agents.

“After 20 years of campaigning, the Government has finally listened to our call for proper regulation of the industry.

For the last two decades, successive governments have passed significant amounts of complex legislation on landlords, none of which has been properly policed or adequately enforced.

These announcements demonstrate a very sensible shift towards focusing on the root cause of the issues affecting the sector rather than trying to find legislative solutions to individual problems.

“For landlords, their rental property is usually their biggest asset after the home in which they live, and for tenants, it’s their home.

“It must be the right of every landlord and every tenant to have a letting agent who knows what they are doing, is professionally qualified and the money they entrust to their agent is protected.

This is a huge step towards creating a

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level playing field across the industry, and we look forward to working with the Government on this.”

Consistency of enforcement Meanwhile, the Royal Institution of Chartered Surveyors (RICS) is also in favour of the proposed changes. Mike Basquill, UK Residential Associate Director, says: “We have previously indicated our desire for government to introduce a code of conduct into the private rented sector at a Westminster level, and are in fact already participating in an industry coalition which is preparing a PRS Code (Property Redress Scheme) to be offered to the Government for adoption.

“Currently, industry regulation is piecemeal and hard to navigate. In some local authority areas with selective licensing schemes the cost of a license can vary widely between areas separated by only a few streets. Some areas also give a discount for those using accredited agents and others make no differentiation between a landlord and an accredited agent.” Basquill says.

“This is a result of governments’ track records of generating incremental measures in reaction to perceived extraordinary pressures in various parts of the PRS. Examples would be the Immigration Act checks mandated on landlords and agents with respect to incoming tenants, and the banning of letting agents’ fees.”

McKeown adds: “The legislation says that a letting agent has to comply with the Immigration Act. So by not complying with that it could be an offence under our legislation. But there are some boroughs that say they don’t agree with the Immigration Act, they think it’s discriminatory, so they’re not going to enforce it. And that is happening in quite a big way.”

In addition, there is a problem with ongoing cuts to trading standards’ budgets, as Basquill from RICS acknowledges.

“A further issue is the resourcing of enforcement in a period of local authority austerity, which has been a serious

Right Thousands of UK renters and leaseholders suffer every day at the hands of rogue agents.

“The fact is that most letting agents don’t know how to run a lettings agency. So many letting agents have no clue as to what they have to comply with. It’s worrying.”

Alex McKeown, joint lead officer for property and lettings, CTSI

Summer 2018

Journal of Trading Standards

challenge for both local authority trading standards officers and the National Trading Standards Estate Agency Team,” Basquill says.

Funding public safety It’s no secret that swingeing cuts have severely affected trading standards officers’ ability to do their work. “The teams are getting less and less and getting despondent and are thinking about not staying in trading standards,” says McKeown.

“For years, trading standards has been a dying breed and the expert knowledge is going. I know that the priority areas are changing and that’s the other thing. More and more authorities are being told they have to look at housing but they don’t have the officers to look at housing. We are constantly being cut.”

So, what has this meant for public safety? In April, a possible carbon monoxide leak at a property in Harrow left two dead and five people ill, including two children. It is believed that a faulty boiler was the cause. The property was rented. And a leaked report for the Metropolitan Police on the devastating Grenfell Tower fire, which claimed 71 lives in June 2017, said that the fire was fuelled by botched refurbishment decisions that went well beyond the use of flammable cladding panels and insulation. These “These announcements included wrongly fitted demonstrate a very sensible cavity barriers and many missing or broken door shift towards focusing on closers. the root cause of the issues McKeown says: “The ultimate effect of trading affecting the sector” standards generally being cut is that we can’t deal with huge problems. When you think about the fact that trading standards deals with safety, it deals with electrical safety, it deals with underage sales of tobacco.

“The effect of trading standards being cut back is that you are going to end up with more crime. The public gets cross with us and says well, they’re committing a criminal offence and we have to say that we can’t deal with it. And they lose faith in us.

“From a lettings point of view, with all the cuts, you’re going to end up with more tenants that die. You just are. That’s the gravest thing, but here in the paper are two men who have died just because they didn’t have a carbon monoxide tester in their property.

“I’ve been into properties that are just disgusting. The electric and gas are turned off at night, there are children there, cold temperatures, dangerous electric showers. And that’s the thing. Agents go under the radar, they put up these illegal partitions, they take out the alarms, they pull out the batteries, they say it’s foreign people or lower people so it doesn’t matter.

“More money needs to be given to trading standards to enforce its legislation. It needs to be more of a priority. That is what everybody says because the only way that it can be dealt with is if we get funding.”

www.JournalofTradingStandards.co.uk

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Best Practice

Focus on trading standardsâ&#x20AC;&#x2122; value CTSI is launching a new best practice guide, showcasing innovation and excellence in trading standards, designed to empower services, inspire dialogue and show the value of our profession.

Ben Richards Campaigns and Policy Executive, CTSI.

When asked on which broad themes the guide should reflect, over 80% of respondents wanted economic growth, public health, and safeguarding the vulnerable to be featured.

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Much of CTSIâ&#x20AC;&#x2122;s work over the last few years has focused on providing evidence of how cutbacks have impacted on trading standards. Each of our Workforce Surveys has re-enforced the picture that the majority of services in the UK have seen staff numbers fall, which has led increasingly to a postcode lottery of service provision between authorities.

This research has been well recognised - and quoted - nationally and has helped gain political attention for the difficulties trading standards faces. Other articles in this journal have noted the consumer green paperâ&#x20AC;&#x2122;s call for a national conversation about trading standards as the foundation of well-enforced consumer protection that safeguards both consumers and businesses.

A local focus However, the loudest discussions about the future of the profession nationally ignore the fact that, for at least the foreseeable future, the decisions on resources in each local authority will be made by the elected councillors. CTSI is therefore launching a new guide, entitled The Value of Trading Standards - A showcase of excellence, innovation and best practice, to highlight to councillors the value of trading standards both nationally and locally, through examples and case studies.

Trading standards services across the country continue to achieve success in consumer protection, but their worth to a local authority often goes unnoticed. We hope that, through the guide, councillors

will gain insight into the varied work of trading standards, helping to open up conversations about the value that their local service has to offer to wider local authority objectives.

Evidence-based topics Before the guide was considered we requested that the Association of Chief Trading Standards Officers (ACTSO) conduct a snap poll to establish whether there was an appetite for this project.

Of the 61 respondents, over 95% saw a value in a guide. Almost all felt the guide should consider work of individual authorities, partnerships between authorities (formal and informal), and work via regional groups.

When asked on which broad themes the guide should reflect, over 80% of respondents wanted economic growth, public health, and safeguarding the vulnerable to be featured. Wider ideas expressed were the inclusion of groundbreaking cases, online issues and crossagency working amongst several other suggested topics.

The call for evidence was launched on 31 January and was sent to heads of service as well as being published on our website. We were delighted to receive a broad range of responses from over 30 local authorities across the UK. It would be impossible to cover the full quality of these responses, as well as the breadth of trading standards responsibilities as a whole, in the 20-page guide. Those that demonstrate great examples of trading standards work

Summer 2018

Journal of Trading Standards

but are not included in the guide will be featured online on the new Journal of Trading Standards news hub in the coming months.

Key themes In order to target councillors effectively, and considering the evidence received, we grouped the examples into two main themes – ‘supporting businesses’ and ‘protecting communities’. Outside of these, we sought to draw attention to particular issues that were strongly raised.

The guide clearly shows a number of interesting trends.

First is the role that trading standards expertise and legislation plays in making partnerships more valuable, whether that is the City of London working with police on Operation Broadway, working with Environmental Health on housing issues

or Cornwall Council Trading Standards working with other regulators.

Second is that trading standards is on the cutting edge of several issues that have national attention, such as work around ensuring that rogue landlords are not in a position to take advantage of the currently overwhelming demand for rental property.

Third was the number of examples of local issues - such as diving equipment regulations or distance postage charges which were effectively handled by trading standards, further highlighting the level of adaptability the profession shows in responding to local demands.

Further, most of the initiatives showed a virtuous circle in which the specific projects allowed staff numbers to be maintained, thus providing capacity for other priorities.

Launching the guide The contributing organisations have each been invited to present on their example at the CTSI Symposium held in Nottingham in June. They will outline how the project was set up, what benefits it brought, and detail any advice they would share with other authorities.

CTSI will also be in attendance at the LGA conference in Birmingham in July, where we can present the guide directly to English councils – our research shows these are the places where the most extreme cuts to frontline trading standards have taken place.

FURTHER INFORMATION The Value of Trading Standards - A showcase of excellence, innovation and best practice will be launched at the CTSI Symposium on 5 June 2018 and will also be available on the CTSI website.

Nominate a Colleague Fellowship Do you know someone who has ‘gone the extra mile’ for our profession?

Any member with suitable support can nominate another for consideration by the college and CTSI council.

We rely on your support by way of donations to enable this support.

If you are interested please contact us at college@tsi.org.uk

Do you know a colleague like this?

www.JournalofTradingStandards.co.uk

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In conversation with: Andrew Griffiths

Journal of Trading Standards

I n c o n v e r s at I o n w I t h

Andrew Griffiths Since Andrew Griffiths took up the role of Consumer Minister in January there has been real momentum, with a consumer green paper and the launch of Safety & Standards – with £12m a year of new funding – already achieved. We asked him what his ambitions are for the year ahead.

BY HELEN NUGENT

“I bet everyone says this, but if I could have picked a Ministerial job then this would be it.”

It’s just a few months since Andrew Griffiths was appointed the Minister for Small Business, Consumers and Corporate Responsibility at the Department for Business, Energy and Industrial Strategy, and the Burton MP’s enthusiasm shows no sign of waning.

“I am quite a practical kind of politician, I like to get things done and I think these are areas where you can really make a difference. It’s been busy and we have seen some significant steps already, including launching the new Office for Product Safety and Standards and the Modernising Consumer Markets Green Paper.”

Griffiths’ role covers a wide remit, from the smallest of small businesses through to the corporate governance rules for Britain’s biggest companies, as well as ensuring that consumers can buy from all of these businesses secure in the knowledge that there is an effective system of protections in place. It’s a lot to take in for a new minister but Griffiths says that his business background means that he understands the contribution that trading standards and effective enforcement make to our economy.

“You simply cannot have a level playing field without effectively enforced

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rules, and those rules need to be clear and fair. But you also learn a lot as an MP - representing businesses and consumers in your constituency, you come across a lot of cases involving regulation and enforcement, and the valuable work that trading standards officers do.”

A call for input Before becoming an MP in 2010, Griffiths worked for his family’s engineering business in the West Midlands prior to joining Leeds Permanent Building Society, now Halifax. Later roles included Chief of Staff to Theresa May and Eric Pickles, as well as time spent as an adviser on farming in the European Parliament for the Conservatives.

Today, he believes that the UK has significant economic strengths on which it can build “but we also need to do more to increase our productivity and make the most of our untapped potential”.

He adds: “That is why we are seeking views from across the country on how we can help businesses raise their productivity and how we can stamp out unfair payment practices, which is an important issue for small businesses. I would encourage the trading standards profession to provide their insights through the two Calls for Evidence.

“Another priority of mine is ensuring consumers are getting the best deals

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In conversation with: Andrew Griffiths

and are protected when things go wrong.

Recently, we launched the Modernising Consumer Markets Green Paper, which set out proposals to modernise the approach taken by regulators, ensuring data works for consumers and ensuring consumers have access to redress for when things go wrong. This also includes exploring how to improve accountability for the enforcement of consumer law and strengthen our system of consumer protection while maintaining strong links to local authorities.”

What, then, are his ambitions for this green paper?

“It is about building a business environment fit for the future, one in which new technologies help, not hinder, the competitive markets that consumers rely on to provide quality goods and services at low prices. That is why the green paper includes proposals to ensure new technology and data are used to benefit consumers, to strengthen national enforcement of consumer rights, to improve consumers’ access to alternative dispute resolution services and to establish a set of principles underpinning how vulnerable consumers can expect to be treated. We would like to hear from consumer groups, consumers themselves, and would encourage local trading standards teams to work with us to ensure we have a robust consumer protection regime that can provide a robust response to both local and national threats. The consultation closes on 4 July and again I

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You simply cannot have a level playing field without effectively enforced rules, and those rules need to be clear and fair.

Right Central government has shown its support for consumer protection, saying that public saftety is its number one priority.

would encourage trading standards teams to contribute their perspective to it.”

Support for public safety While it is encouraging to hear the Minister’s comments on contributions by trading standards to future legislation, there’s no getting away from the fact that, according to CTSI evidence, there has been a fall of at least 50% in trading standards officers in the past seven years.

Does Griffiths think that these cuts are putting the public at risk?

“Public safety is the Government’s number one priority,” he says. “Which is why we are providing consumers with

the highest ever level of protection by investing an extra £12 million each year in the new Office for Product Safety and Standards. It is the responsibility of local authorities to decide on funding decisions for local trading standards based on local need.”

As for the impact of the Office on local trading standards, Griffiths says: “The new Office for Product Safety and Standards is there to augment and support the work of local trading standards teams by bringing together technical and scientific expertise to assist them and make their work more effective, as well as coordinating rapid and effective action when national

Summer 2018

Journal of Trading Standards

“It is the responsibility of local authorities to decide on funding decisions for local trading standards based on local need.”

product safety issues arise.

“The Office also works with businesses to help them understand their responsibilities - the first big achievement of the new Office was the publication in March of the first ever governmentbacked code of practice for product recalls, which the Office produced with the British Standards Institution.”

The future of enforcement Meanwhile, in the consumer green paper, the Government highlighted competition as crucial to markets. How does the trading standards profession, which is naturally an enforcer, fit into this?

“As well as protecting consumers, trading standards helps law-abiding businesses by preventing them being undercut by firms that claim to be offering good value but are actually competing unfairly. One example highlighted by the consumer green paper was the Competition and Markets Authority’s work with trading standards to ensure businesses are not using unfair terms in their dealings with consumers.”

Looking more closely at trading standards, Griffiths believes that there are a number of different priorities for officers in their work protecting businesses and consumers.

“Most trading standards officers see doorstep crime, consumer safety and rogue trading as their biggest priorities,” he says. “Dealing with these issues will remain vitally important. There are also

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areas that are likely to grow in importance over time, such as e-crime, given the increasing amounts of money being spent online, and protecting vulnerable consumers, such as those with dementia.

“The UK’s population is ageing - as it is across the industrialised world and dealing with all the challenges and opportunities presented by this is one of the ‘Grand Challenges’ identified in our Industrial Strategy.

“We have an obligation to help our older citizens lead independent, fulfilled lives, continuing to contribute to society. If we succeed, we will create an economy which works for everyone, regardless of age.”

Griffiths is attending the CTSI Symposium in Nottingham this year.

One final question for him: if you were speaking to the profession in 12 months’ time in summer 2019, what would you hope to have achieved?

“Hopefully my speech this year will be well received and CTSI will invite me back for 2019. I would turn the question around and ask the trading standards profession what kind of enforcement landscape they would like to see in 12 months’ time.

The Government has further strengthened our product safety regime and we are now considering options to strengthen enforcement in relation to the likes of scams, unfair trading and e-crime.

The consumer green paper consultation runs until 4 July so do respond to it and help shape the future of enforcement.”

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CPPD Module

WORDS BY

Max Malagoni, CMA Max Malagoni is Campaigns and Compliance Manager at the Competition and Markets Authority.

Continuing Personal Professional Development Module

The systematic improvement of your vocational knowledge and skills - both through expansion and refinement – is absolutely essential in keeping on top of an ever-changing regulatory landscape at this time of restricted resources.

As part of its role leading the trading standards profession the CTSI offers free CPPD modules through its publications.

The Journal of Trading Standards is pleased to offer the latest in the series here.

After reading the article, you can head to the CTSI website to complete the questions (also included on page 42).

More details are included on the following spread.

Successful completion is worth one hour of CPPD.

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CPPD Module 14:

Car Hire

Consumers complain about car hire a lot and complaints to the UK European Consumer Centre (UKECC) are rising.

Frustration with the industry is reflected in the language used in news headlines: ‘scandal’, ‘rip-off’, ‘racket’, ‘scam’. In this article, I’ll cover the main practices that fret consumers and reporters alike and what enforcers are doing about them.

Let’s start with the types of businesses that consumers deal with. Some companies supply the rental car. AvisBudget, Enterprise, Europcar, Hertz and Sixt (the ‘Big 5’) dominate this part of the market, between them supplying twothirds of European rentals and even more UK ones. Consumers don’t necessarily book direct with a supplier, though. They may book through a broker, allowing them to compare offers, make a payment and reserve a vehicle. They may also use a meta-search engine that allows them to compare offers and then passes them onto a supplier or broker.

The main consumer issues Consumers may face problems with any of these businesses because things can go wrong at any stage of the ‘consumer journey’: search and booking, arrival at the supplier’s rental desk to pick up the car, and post-rental when the car is returned. Problems arise because of unclear information, the behaviour of staff at the rental desk or contract terms disadvantageous to the consumer.

While searching and booking, consumers need full, clear and accurate information so they can make informed choices about which deal best meets their needs. The main difficulty at this stage is the inability to access that information.

For example, charges may be hidden or only revealed late in the booking process or at the rental desk. Key terms such as

the excess and deposit amounts may not be explained prominently enough. These problems make it hard for consumers to find the best deal and can affect them whether their rental is in the UK or overseas.

Arriving at the rental desk to collect the vehicle, consumers sometimes complain that they are misled or pressurised into buying the supplier’s costly excess ‘insurance’ (strictly, not insurance but a waiver that reduces the consumer’s responsibility should the car be damaged). They may get a hard sales pitch, or be caught out by terms and conditions which say they must buy the insurance if they cannot cover the deposit or present the credit card that was used to make the booking. These problems are far more common overseas than in the UK. Another issue at the rental desk is not getting the expected type or quality of car. For example, discovering that it is a smaller car or one with fewer features like air conditioning - than the one that was booked. Consumers get annoyed when they are not fully compensated for this or are required to pay extra for an upgrade to get the key features that they thought they had already bought.

The biggest problem of all, however, happens after the car is returned. Some consumers find that additional payments have been taken from their credit card, without notification or explanation, to cover damage repairs. They either dispute

Summer 2018

Journal of Trading Standards

“While searching and booking, consumers need full, clear and accurate information so they can make informed choices about which deal best meets their needs.” responsibility for the damage or are shocked at the cost of the repair. This is the most complained-about issue whether the rental is in the UK or overseas.

Driving up standards These types of practices are breaches of consumer protection law, notably the Consumer Protection from Unfair Trading Regulations 2008. They can cause significant consumer harm. They have also become widespread across the industry. In recent years, enforcers have had to intervene to raise standards.

The highest-profile case is Leicester City Trading Standards Service’s ongoing investigation into Europcar, following allegations that surfaced in June 2017 that the company had overcharged UK consumers for car repairs. In September 2017, the Advertising Standards Authority upheld a complaint about a Europcar claim: “the model you choose is the model you get. Guaranteed”. It ruled that this advertising was likely to mislead and should not be repeated in future unless the company could ensure that the models would always be available.

The Competition and Markets Authority (CMA) has spent several years tackling unfair practices in this market. In 2015, alongside its counterparts in EU member states and the European Commission, it began working with the Big 5 on a range of issues. This resulted in the Big 5 agreeing to show prices that include

www.JournalofTradingStandards.co.uk

| 41

CPPD Module

CPPD MODULE 14: CAR HIRE

Review the 8 questions below, and when you’re ready, submit your answers at tradingstandards.uk/cppdtest 1. What companies make up the ‘Big 5’?

2. What is the main difficulty for consumers at the search and booking stages?

3. Which rental desk issue is more common overseas than in the UK? 4. Complaints about damage fall into two categories. What are they?

5. Which trading standards service is investigating Europcar and what is the investigation about?

6. How many online brokers and meta-search engines did the CMA work with and how many brokers signed undertakings?

7. How does the CMA’s next phase of work, starting in 2018, differ from its previous work?

8. For UK consumers, why might a booking contract be more open to UK enforcement action than a rental contract?

Applicants who complete the module successfully will be given a certificate.

The test must be taken by August 31st 2018.

If you have any questions, please email training@tsi.org.uk Previous module answers are available to members on the Journal of Trading Standards website.

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Summer 2018

Journal of Trading Standards

Key things to watch oUt for

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The different types of businesses can confuse consumers. When making complaints, they may be unclear which party they contracted with.

There will often be two contracts: a booking contract made in the UK when the consumer books in advance with a supplier or broker, and a rental contract made in the rental location when the consumer picks up the car. For overseas rentals, the booking contract is still subject to UK jurisdiction, but the rental contract probably won’t be.

The Big 5 operate franchise operations in many countries, so the consumer may be contracting with a company that is not directly part of one of these large businesses even though the rental carries their branding.

Big 5 brands include: Avis, Alamo, Budget, Dollar, Enterprise, Europcar, Firefly, Flizzr, Goldcar, Hertz, InterRent, National, Sixt, and Thrifty.

Advertised prices, including initial

quotes, should include all compulsory charges. These charges include (where they apply): young driver surcharges, one-way fees, fuel surcharges, out-of-hours fees, airport surcharges, and taxes.

All suppliers and brokers should tell consumers during the booking process what the excess and deposit amounts will be. It’s often when these amounts are large that people feel pressurised into buying additional insurance since this will reduce their excess and deposit.

Suppliers should give consumers evidence of any damage and an explanation of how any charge was calculated. They should also give consumers prior notice before a card is charged.

If a consumer suffers a problem, the BVRLA conciliation service may be able to help if the rental was in the UK and the supplier is a member. If the rental was elsewhere in Europe, the conciliation service operated by Leaseurope may be able to help; all of the Big 5 are members.

all compulsory charges, provide better information at the booking stage about deposit requirements and waiver products, give more upfront information about vehicle inspection processes, and improve their procedures for vehicle inspection (so consumers are notified of charges before payment is taken and have the chance to challenge them).

Also in 2015, the CMA helped the British Vehicle Rental and Leasing Association (BVRLA) to revise its Code of Conduct. The code covers both booking and rental-contract-related matters. It requires members to participate in the CTSI-approved BVRLA Conciliation Service and comply with its rulings. Over 270 UK-based suppliers are signatories to the code.

Following these actions to improve suppliers’ practices, in 2016 the CMA turned to the online brokers and metasearch engines. It worked with around 40 companies to significantly improve the accuracy and clarity of information available to consumers at the search and

booking stage. In addition, in March 2018, three brokers signed formal undertakings to include all compulsory charges in their quotes and show all essential information such as excess and deposit amounts.

In March 2018, the CMA also announced a new phase of work.

Following extensive complaints from consumers encountering hidden costs on collection of their car at airports abroad, the CMA is now taking enforcement action against businesses that are based overseas but are selling directly to UK consumers online.

CONTACT DETAILS For more information on the CMA’s work, including its consumer law compliance summary for online car rental intermediaries and its advice to consumers, see www.gov.uk/cma-cases/car-rentalintermediaries.

The UK ECC’s consumer advice on car hire across the EU leaflet is at www.ukecc.net/publications/leaflets.cfm.

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Legal

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Summer 2018

Journal of Trading Standards

Trade marks: r v m

fools’ gold? miles Bennett and Charlene sumnall, of 5 Paper Buildings, take us through the r v m case, which many believe created ‘new law’ making it easier to secure section 92 prosecutions for ‘grey market’ goods. But was it all it was cracked up to be?

After many years of local government cuts, reductions in resources and budgets, trading standards departments could be forgiven for thinking that any legal development that might increase their chances of getting their hands on large pots of ‘Criminal Lifestyle’ gold would be warmly welcomed with a hearty cheer. If that legal development emanated from the Supreme Court, that hearty cheer could become a deafening roar.

That seems to be the perceived wisdom amongst some trading standards departments in the light of the Supreme Court’s judgment in R v M and Others [2017] UKSC 58. The case is said to have created new law. But has it? And will it really lead to more convictions and confiscation orders for criminal trade mark infringement under Section 92 of the Trade Marks Act (TMA) 1994?

The ‘old’ law: R v Johnstone [2003] UKHL 28 When people claim that a case has introduced or made ‘new law’ it’s never a bad thing to remind oneself of what the ‘old law’ was. Subject to the defence in Section 92(5) - the “reasonable belief defence”- the criminal offences are set out in Sections 92 (1)-(3). In short, it is an offence with a view to gain for yourself or another, or with intent cause loss to another and “without the consent of the proprietor” to: • apply to goods or packaging a sign

identical to or likely to be mistaken for a registered trade mark [92(1)(a)] • sell or let for hire, offer or expose for sale or hire or distribute goods which bear, or the packaging of which bears, such a sign [92(1)(b)] • have in your possession, custody or control in the course of a business any such goods with a view to the doing of anything, by yourself or another, which would be an offence under paragraph (b) [92(1)(c) • apply a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used (i) for labelling or packaging goods, (ii) as a business paper in relation to goods, or (iii) for advertising goods, [92(2)(a)] • use in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, [92(2)(b)] • have in your possession, custody or control in the course of a business any such material with a view to the doing of anything, by yourself or another, which would be an offence under paragraph (b) [92(2)(c)] • make an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, [92(3)(a)] • have such an article in your

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Legal

by Miles Bennett and Charlene Sumnall

possession, custody or control in the course of a business, knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods. [92(3)(b)] It follows that the law has always required the prosecution to prove both that the offending activity was with a view to gain or with intent to cause loss and that it was without the consent of the proprietor.

Lord Nicholls, in his judgment in Johnstone (para 31) made it clear that: “For these reasons section 92 is to be interpreted as applying only when the offending sign is used as an indication of trade origin. This is one of the ingredients of each of the offences created by section 92. It must therefore be proved by the prosecution. Whether a sign is so used is a question of fact in each case.”

To summarise Johnstone, the criminal offences under S.92 TMA are only made out when the offending sign has been used as an indication of trade origin. Put simply, said the House of Lords, there

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can’t be criminal infringement if there is no civil infringement. A defence of non-infringement was available under S.92(5) if the defendant showed that his actions would not have amounted to civil infringement of the trade mark.

Civil infringement under the TMA is set out in Section 10. It is not proposed to set out that section in this article, but without civil infringement there is no criminal infringement and the burden of proving criminal infringement rests on the Prosecution throughout the trial to the criminal standard of proof.

The ‘new’ law The facts: The goods were manufactured abroad in countries outside the EU. Some of the goods in the possession of the defendants were said to have been manufactured by people who were neither the trade mark proprietor, nor authorised by the proprietor to make them. This first category of goods, the appellants described as “counterfeits in the true sense”.

For a significant portion of the remainder of the goods there had originally been an authorisation of manufacture by the registered trade mark holder, whether by subcontract, licence or otherwise, but whose sale had not been authorised by him (the trade mark holder). They were thus sold, bearing the trade mark, without the consent of the owner of the mark.

Some of the garments might deliberately have been made by the factories in excess of the numbers permitted by the trade mark holder.

Some might have been made in excess of the order without that original ulterior intention, but then been put on the market without the trade mark holders’ consent. Some might have been made under a permission that was cancelled by the trade mark owner and that might include cases where the trade mark owner was dissatisfied with the quality. These goods were described as ‘grey market’ goods, appearing on the ‘grey market’.

The Supreme Court confirmed that there had to be civil infringement before there could be criminal infringement and

“The case doesn’t assist with how a prosecutor can prove that which he or she has always had to prove. The pot of gold at the end of the rainbow still seems a long way away.”

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Journal of Trading Standards

A defence of noninfringement was available under S.92(5) if the defendant showed that his actions would not have amounted to civil infringement of the trade mark.

that all the examples in the paragraph above amounted to civil infringement.

The Defence argument was that Section 92 only applied to ‘true’ counterfeits (an oxymoron?) not ‘grey market’ goods.

The Supreme Court concluded that: (1) So-called ‘grey market’ goods are caught by Section 92. (2) The offences set out in Section 92(1) (a)-(c) are separate standalone offences, not cumulative and (3) that the only mental element is “with a view to gain…or intent to cause loss”.

But is it really ‘new law’? The words of the statute have not changed. “Without the consent of the proprietor” has always been in Section 92 and the offences under Section 92 are committed “without the consent of the proprietor”. Has R v M created new law at all? For some practitioners the only real surprises from the case were: (1) that anyone thought that ‘grey market’ goods weren’t capable of being caught by Section 92 and (2) that it needed the Supreme Court to state what the law is and (as some had thought) always has been.

www.JournalofTradingStandards.co.uk

Pots of gold, rainbows and fools Why then have there been so few Section 92 prosecutions for ‘grey market’ goods?

Will there now be a rush to secure convictions and seek eye-watering confiscation orders? The answer to both may lie in that annoying five-letter word for prosecutors… proof!

The Supreme Court dealt with this in passing in Lord Hughes’s judgment at paragraph 18: “…The possible difficulty of distinguishing, where there has been an overrun, between the goods marketed with the proprietor’s authority and those which were a backdoor venture on the part of the manufacturer and subsellers, might as well arise on both constructions; no doubt in many cases the circumstances of the exit from the factory and of the subsequent sales will often be telling…”

Bearing in mind that the burden of proving the ingredients of the offence remains on the prosecution throughout, that the prosecution must prove civil infringement before it can prove criminal infringement, that the prosecution must

rule out that the trade mark holder’s rights have been exhausted, (see Section 12 TMA) proving to the satisfaction of the jury that the goods really are ‘grey market’ goods is far from straightforward, as is finding admissible and cogent evidence as to “the circumstances of the exit from the factory”. Trade mark holders will often have a vested commercial interest in asserting that goods seized were on the market without their consent.

Has R v M made it easier to prove Section 92 offences in relation to ‘grey market’ goods? Not really. Trading standards departments have no new resources in terms of staffing levels or filthy lucre. The case doesn’t assist with how a prosecutor can prove that which he or she has always had to prove. The pot of gold at the end of the rainbow still seems a long way away. There is a saying: ‘fools rush in’. For those who see confiscation pound signs in front of their eyes in the light of R v M remember this: There are two C’s in confiscation…and the first one is called conviction!

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CTSI Symposium 2018

by Temoor Iqbal

CTSI Symposium:

Trading standards comes together

The CTSI’s annual event is always a great opportunity for trading standards professionals to meet and converse. At a time when maintaining skill and experience in the profession is crucial, this year’s event takes on a greater focus on professional development and training.

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With a renewed focus on the UK’s trading standards framework, the profession is in a unique position to drive positive change. At the forefront of this push is the CTSI Symposium 2018, an event that aims to give the trading standards world a new look and feel to fit what modern society needs it to be.

Karin Layton, Senior Events Executive at CTSI, says: “It always seems impossible until the work is done but the key to this event is planning, planning, planning!

I am really looking forward to seeing colleagues old and new in Nottingham; for me the annual event is a fantastic opportunity to meet up with people who I correspond with throughout the year.

“We are going to be at an exciting new venue with a refined structure, this is a trial for 2018 and we will be seeking the feedback of our members to determine the structure for 2019. so please take five minutes to complete the survey that will

be available at Symposium.”

The Symposium takes place on 4-6 June, and will be held at the East Midlands Conference Centre – a purpose-built event space set among the lush greenery of the Nottingham University campus.

The venue is located just two miles from Nottingham city centre, and is very close to the M1, allowing easy access by road or rail. A range of residential and nonresidential delegate packages is available, with discounted rates for CTSI members.

Andrew Griffiths, MP The focal point of the three days will undoubtedly be the first day’s plenary, delivered by Andrew Griffiths MP, the government’s new Minister for Small Business, Consumers and Corporate Responsibility (see our interview with the Minister on p36).

The Symposium’s keynote address, this session will focus on the crucial task

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Journal of Trading Standards

Making change happen The CTSI Symposium would not be possible without the support of members and, of course, sponsors. Main sponsor Status International, the UK’s leading independent supplier of lighting and electrical accessories, is joined by car manufacturer BMW, consumer choice specialist Which?, nuisance call blocker TrueCall, digital identity app Yoti, and specialist dog services provider Wagtail in supporting the event.

of influencing decision makers in seeing the impact of trading standards work – an important stepping stone to increasing public understanding of the profession’s value and importance. Griffiths will specifically look at how trading standards officers can demonstrate to local councils the impact they have on economic growth, providing a crucial link that should help consumer protection professionals attract a greater share of local authority funds.

CTSI Best Practice The following day’s plenary, which promises to be no less enlightening, will see CTSI launch its new guide, The Value of Trading Standards.

A showcase of exemplary practice, the guide will be targeted at councillors, helping those decision-makers to see and understand the vital role that their own trading standards services play in safeguarding communities and

www.JournalofTradingStandards.co.uk

boosting local businesses. The final plenary session, held on the Wednesday, will follow on from this, with selected submissions highlighting successful work and projects in 20-minute presentations, under the theme ‘the value of trading standards’.

Masterclasses These plenaries will set the positive, forward-looking tone of the Symposium, but they will not be the only sessions available for delegates.

Each day will also feature a number of talks and networking sessions, and will be capped by a masterclass focusing on the legal and technical side of the profession.

The first of these will explore the Ivey v Genting Casinos [2017] case that overturned the 35-year-old legal test for criminal dishonesty, and which has significant repercussions for trading standards law. Other masterclasses will

examine the impact of landmark trading standards cases, and how officers can increase their understanding of the Proceeds of Crime Act 2002 to maximise their chances of legal success.

Skills and influence The CTSI Symposium 2018 is the leading event for the trading standards profession and the key force for consumer protection.

Education, networking, knowledge sharing and engagement with decisionmakers will give trading standards officers the vitals skills and influence needed to represent consumers, and maintain the UK’s high quality of business in an increasingly complex legal and regulatory landscape.

So - if you’re not already booked register now to play your part in mapping out the trading standards environment of the future.

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Last Word

Eleni Chalkidou Eleni is Editor-in-Chief at the Journal of Trading Standards and Director of Communications at CTSI

This issue Metrology is the original trading standard, the underpinning of a profession, and the very essence of fair trading – one set of standards that everyone understands and adheres to. It demands scientific precision from both the Davids and the Goliaths across national boundaries.

But divergent regulatory systems post-Brexit could undermine all that. Helped out by the forthright, bombastic force of nature that is weights and measures guru David Templeton, I make the case that we’d be nowhere without metrology.

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Where would we be without…

Metrology?

Jimmy buys 500g of peanuts from the greengrocer, Sally buys 800g from the supermarket and Katie buys 1kg from the corner shop. Jimmy gives half of his to Sally.

Who has the most peanuts?

If your answer is Sally, you’d get full marks in a primary school maths test but in the real world there’s every chance you could be wrong. If the scales in our hypothetical retailers are slightly out, Jimmy, Sally or Katie could end up with fewer peanuts than they had bargained for - no laughing matter when you’re trying to make every penny of your pocket money count.

The above example might seem innocuous - after all, what’s a few peanuts between friends - but in truth, ensuring the accuracy of weights and measures underpins the entire raison d’etre of trading standards. Today’s CTSI had its seed in 1881’s

Incorporated Society of Inspectors of Weights and Measures.

Metrology is something that many take for granted in everyday life. But in many ways it is the invisible ally of the consumer, a powerfully clear-cut method that helps establish fairness and honesty in dealings with retailers and suppliers.

According to David Templeton, the CTSI’s Lead Officer for Legal Metrology, there is more to the discipline than “making sure you get the right amount when you go to the shops, the pub or the supermarket.

“Metrology has helped to drive standards up. It has improved levels of consumer protection, it has harmonised and provided a uniformity of levels of protection.

“From a business perspective, it has provided ease of access to markets, it has reduced technical barriers to trade, and it has promoted the free movement of goods and services around the EU.” But the uncertainty surrounding Brexit has put the discipline in a somewhat fraught position, Templeton explains. “In terms of legislation, weights and measures is almost exclusively driven by policy that emanates from the EU, and has been since the 1970s.”

The UK’s diminished involvement in metrology legislation in the wake of Brexit, combined with declining levels of interest in the discipline within the trading standards profession, is something Templeton is concerned about.

But he is convinced that the government could do more to promote the importance of metrology. “If we could replicate the system of control that we have for food standards in legal metrology, I think that would be a significant step forward.”

As David reiterates, metrology operates “unseen and in the background”. But if it slips into the background of trading standards, the result will be bad for consumers and businesses alike, whether they’re buying or selling beer, petrol or peanuts with their pocket money.

Summer 2018

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