TS Review November 2015

T H E T R A D I N G S TA N DA R D S J O U R NA L

November 2015 Issue 4

New website provides practical guidance to legislation Chartered Trading Standards Institute and Virtual College are delighted to announce the launch of their TradeSimple website.

Here you will find a range of online training resources suitable for businesses of all sizes covering topics including fair trading, product safety and age restricted goods.

Courses currently available • • •

Prevention of Underage Sales Consumer Contracts – Distance Sales Consumer Rights Act 2015

Coming Soon ‘Trading Fairly’ will cover Consumer Protection of Unfair Trading helping traders to understand what the law says about fair trading and how things you do can be deemed to be ‘unfair’. The course identifies those trading activities which can be deemed to be ‘aggressive’ and what trading activities are banned completely.

The ‘Alternative Dispute Resolution (ADR)’ online course will describe the legal obligations of a business towards their consumers where they have failed to resolve disputes between themselves and a consumer.

It will help businesses understand the trader requirements and complaints process. It explains the route available to consumers to gain redress from an impartial third party and the duty of the trader to provide this information.

Importantly, it highlights the time limits, if any, for the trader to resolve the dispute directly with the consumer or transfer the dispute to the third party for mediation or arbitration.

‘Consumer Contracts – Off Premises’ explains off-premises contracts and the types of contracts that traders may enter into. The course describes what information traders must give consumers and how that can be given. It covers how long consumers have to cancel their contracts and what happens when consumers cancel their contracts. It answers questions such as how long you have to deliver the products that consumers have ordered from you and why you need to make sure that consumers who call you can ring on a basic rate phone number.

For retailers, online learning can provide particular benefits compared to traditional training methods. This is particularly true for retailers who have multiple sites, have large numbers of staff who need training quickly or have large seasonal variations in the size of their workforces.

The new TradeSimple website is available at: www.tradesimple.org.uk

EDITORIAL BOARD Our guide to who’s who

Leon Livermore Chief executive, CTSI A er 25 years in local government, Leon joined the Chartered Trading Standards Institute as its chief executive in 2013.

Chris Fay // Editor-in-chief I am well aware that, as this edition of TS Review hits your doormats, it will be around about 5 November and one of the busiest times of the year for the profession – if, indeed, there is ever a quiet time. National Consumer Week should also be under way and many trading standards services are supporting the Citizens Advice-

Welcome

jo Barker programme Manager: Product Delivery, BRDO Jo is part of a government team tasked with improving the business experience of being regulated.

A profession in review led initiative, aimed at educating people about the Consumer Rights Act, using Christmas shopping as a lever.

sara barry head of safer communities, Lincolnshire CC Sara has promoted risk reduction while guiding Lincolnshire Trading Standards Service through major budget cuts.

So, with all this in mind, if you could find time to complete the enclosed reader survey, I would be extremely grateful. TS Review has been shortlisted for an international award, which is great news for all concerned, but we are much more interested in our readers’ opinions and the two are not connected. One year after this journal was launched and its sister publication, TS Today, was redeveloped as a digital magazine seems like a good time to review progress.

Meanwhile, as you will see in this month’s edition, the Local Government Association and the Department for Business, Innovation and Skills are conducting reviews of the trading standards profession. As is the Convention of Scottish Local

Melissa Dring Director of Policy, cTSI Melissa works with politicians and civil servants to make sure trading standards’ voice is heard in policy development.

Authorities and Trading Standards Scotland. You will no doubt recall that CTSI was first to conduct a review of its own and, on this measure alone, I would consider that it was a success. After all, no other local authority service has been the focus of such close and necessary examination, but I do appreciate how that can be unsettling.

This month’s edition also draws attention to how local trading standards teams are playing an increasing role in tackling organised crime. In addition, we look at the seismic changes surrounding tobacco and nicotine inhaling products. The hardy perennial that is fraud is also featured in this issue, and you can read about how trading standards professionals are supporting RBS bank and the City of London,

Dr Louise M Hassan reader in managerial studies, bangor business school Louise’s research interests are international in nature and focus on transformative consumer research.

to tackle it.

Welcome to the November edition; I do hope you find time to read it.

We have been asked to point out that, at the 2015 General Election, the Conservative Party formed a government with an overall majority of 11 seats, rather than a minority government, as previously stated

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EDITORIAL BOARD Editorial enquiries: Carina Bailey // Tel. 0345 608 9468 // Email. tsreview@tsi.org.uk

Illustrations. Paddy Mills

Advertising enquiries: Judith Thurston // Tel. 01268 582221 // Email. advertising@tsi.org.uk

chris fay editor-in-chief

Carina Bailey Editor

matt allwright columnist

Debra nelson ART DIRECTOR

Mark McGinty team leader, Highland council trading standards Mark has been with Highland Council since 2003 and is the current chairman of CTSI Council.

Phil Owen service director (professional standards), CTSI Phil is a commi ed trading standards professional with experience across the private, public and not-for-profit sectors.

Mike Sewell Managing director, CPL Mike is MD of award-winning editorial and design agency CPL, which produces both TS Today and TS Review.

TS Review is part of a family of publications published by the Chartered Trading Standards Institute. It is wri en, designed and produced by CPL (Cambridge Publishers Ltd).

Tel. 01223 477411 // www.cpl.co.uk // @CPLCambridge ISSN 2058-3656 See CTSI’s monthly TS Today magazine online at www.tradingstandards.uk/tstoday Download the app: search TS Today at

Adrian Simpson food, safety & TS Manager Waltham Forest Council Adrian is CTSI lead officer without portfolio with an academic background in journalism.

About the Chartered Trading Standards Institute: www.tradingstandards.uk // Tel. 01268 582200 1 Sylvan Court, Sylvan Way, Southfields Business Park, Basildon SS15 6TH The opinions expressed in editorial material do not necessarily represent the views of CTSI.

We encourage your feedback. Write to tsreview@tsi.org.uk or comment at TradingStandardsInstitute

4

@ctsi_uk

Chartered Trading Standards Institute

/TeamCTSI

No, it’s not a printing error... If you are puzzling over the illustration on the spine of your copy of TS Review, let us explain. It’s simply the fourth of a four-part graphic that will build into the full TS Review logo over the course of this year.

Stack all four issues together on your bookshelf to create your own library.

Gareth Walters Team Leader, Monmouthshire trading standards service Gareth is trading standards and animal health team leader for Monmouthshire CC. He became a CTSI Fellow in 2013.

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46

36

Contents November 2015

25-30

6–9

Academia: EU legislation Impact of the Consumer Rights Directive on UK law

T H E T R A D I N G S TA N DA R D S J O U R NA L

Issue 4 // November 2015

digest Trading standards in the news

10

11–14

analysis Tobacco Products Directive

15

infographic Phone fraud

17

viewpoint Broadcaster Ma Allwright has his say

50

32-35 T H E T R A D I N G S TA N DA R D S J O U R NA L

abstracts Quotes and stats from TS Today

Boiler room fraud Tackling investment fraud in the City of London November 2015 Issue 4

TSR Nov15 pp01 cover and spine.indd 2

18 cover story Reducing fear of organised crime gangs

13/10/2015 15:51

36–40

Interview: Terry Lawson Protecting customers from fraud, sharp practices and scams

41–44

CPPD training Age-of-sale restrictions

46–49

Legal Digital dangers of distance selling

DownTime Complete our coffeebreak quiz to win £25

November 2015

5

Digest

‘I knew nothing until 19 September this year, when I first heard it on the news from the United States’

Volkswagen scandal continues to develop Volkswagen’s UK managing

deceiving customers – and

for the company’s deception,

before the group voluntarily

director Paul Willis has

governments – over its

and assured customers

ceased all sales of affected

denied knowing anything

emissions claims on some

that solutions were being

brands.

about the emissions scandal

diesel engined vehicles

developed and optimised.

currently dogging the car

since 2008.

giant until he heard it on

When asked at what point

According to the Guardian

he personally became aware

caused by the complexity

the news in September.

newspaper’s own analysis,

of the issue, he said: ‘I knew

of the number of vehicles

The admission was made

Volkswagen’s rigging of

nothing until 19 September

implicated. He added that

when he appeared before a

emissions tests could mean

this year, when I first heard it

there were five different

transport committee hearing

the group is responsible for

on the news from the United

brands, three different

in October.

nearly one million tonnes

States.’

engines and two different

The global emissions

of air pollution every year

It was revealed during the

transmissions involved.

scandal has seen 1.1 million

– roughly the same as the

hearing that Volkswagen

UK motorists – and 11

UK’s combined emissions for

continued to sell cars fitted

Markets Authority is yet to

million worldwide – affected

all power stations, vehicles,

with ‘cheat devices’ in the

comment on the developing

by the cover-up.

industry and agriculture.

UK for up to eight days

situation in the UK.

News that Volkswagen, the

that ‘cheat devices’ had

in the world, had been

been added to some diesel

cheating emissions tests in

engined vehicles to pass

America was first revealed

emissions tests.

announced that it had been

The Competition and

The car giant has admitted

largest vehicle manufacturer

in September. The company

In a statement during the hearing, Willis apologised

Volkswagen’s UK managing director Paul Willis leaves Portcullis House a er answering questions from the select commi ee in October

6

Willis defended this, saying the delay was

TS REVIEW SHORTLISTED IN

INTERNATIONAL AWARDS Less than a year a er its initial launch, TS Review has been shortlisted in the Content Marketing Association’s international awards.

The journal is competing against a handful of big names in the Best Public Sector Government category of the CMA’s International Content Marketing Awards 2015.

This year there were more than 400 award entries from 100 agencies representing the work of more than 200 brands and businesses, from 21 different countries.

The shortlist was announced as TS Review was going to press. An awards ceremony, where the winners will be revealed, will be held in London in December. www.the-cma.com

November 2015

Hot topic: A decade of Payment Protection Insurance complaints Citizens Advice Trends April–June 2015

90,000 people have been helped with PPI issues

35%

PPI complaints and redress cases now account for a third of all consumer issues

£117m

£20bn

was the biggest fine for mishandling PPI complaints in June 2015, imposed on Lloyds Bank

has been paid out by the banking industry in compensation since 2011

LGA launches investigation into trading standards’ future The Local Government Association (LGA) has launched its own investigation into the future of trading standards, following the publication of CTSI’s new vision for the profession.

CTSI has argued that, after significant cuts, the current delivery model is ‘broken’. It has called for the creation of strategic trading

trading standards service,

senior local government

standards authorities,

and what it can practicably

managers.

potentially to operate

be expected to deliver

outside of existing local

in the context of further

concurrently with the

funding reductions

Department for Business,

government structures.

The LGA, however,

• Explore and assess the

The project will run

Innovation and Skills’ (BIS’s)

believes the starting

options for the future of

review of how trading

point for this type of

the service, with a view to

standards contributes

discussion must be the

outlining recommended

to competition policy

service’s activities and the

next steps

and better regulation.

outcomes they contribute

The report will develop

It is anticipated that the

to, rather than structures.

a comprehensive picture

conclusions from the LGA

Its investigation aims to:

of the current state of the

and BIS reviews will be

• Analyse what local

service, and will seek the

brought together at an

views of councillors and

appropriate point.

government needs from its PUBLIC SERVICE CUTS

Analysis by the Financial Times has revealed the extent of the cuts in public services since austerity was introduced. Local authorities have scrapped access to vital services for 150,000 pensioners, while spending on child protection has been cut by eight per cent since 2010. Public protection services have also been ‘scaled back’. In 2009-10, council health and safety inspectors in England made 56,175 visits to factories and other workplaces; by 2013-14, this number was just 4,901.

November 2015

A study by the EU’s intellectual property agency has found that the sale of fake clothing, shoes and accessories accounts for up to 518,000 job losses, and €43.3bn in lost sales, in this sector across Europe. The report has been welcomed by the UK Anti-Counterfeiting Group’s director of operations, Alison Statham, who said: ‘The volume of counterfeit goods being sold and distributed in the UK is totally unacceptable.’ See the EU Observatory’s website for the full report.

NEWS IN BRIEF

●

Digest

‘The PPI scandal reached pandemic proportions. It is a real lesson for banks and the wider industry that they cannot get away with mistreating their customers’ GILLIAN GUY CHIEF EXECUTIVE CITIZENS ADVICE

Alternative dispute resolution (ADR) legislation came into effect on 1 October.

Traders must advise a consumer of an ADR body should their own efforts fail to resolve a dispute. CTSI is the ADR approval body in most sectors and has approved 10 organisations to date, in areas such as holidays and car hire.

●

7

Digest

‘ I understand these officers have sifted through 100,000 pieces of data and information to bring this case to court’

SCAMMERS JAILED FOR FOUR AND A HALF YEARS A mother and son who

www.pawspetsupermarket.

swimming pool. This was

attempted to scam almost

co.uk and www.

being funded by housing

the trading standards team

£600,000 from customers

shopforyourpets.co.uk

benefit, and was the

for their work: ‘I am aware

address where most of the

that trading standards

offending took place.

officers have a very limited

using their pet supplies

Once items had been

website have each been

bought, the pair would

jailed for four and a half

repeatedly use customers’

years.

cards to take extra money

after the pair were arrested

these officers have sifted

from their bank accounts.

and bailed in February

through 100,000 pieces of

2012, they took £7,000 from

data and information to

customers’ bank accounts

bring this case to court.’

Mechelle Chatfield, 47, and Ian Chatfield,

David Dixon, prosecuting,

28, from Nunburnholme

told the court that during

near Pocklington, were

the 28-month period, there

sentenced at Hull Crown

had been 35,128 attempts at

Court after pleading

repeat use of credit cards

guilty at an earlier hearing

and, had they all been

to a single charge of

successful, the total value of

participating in a false

the fraud would have been

business between 4 January

£576,288. The actual amount

2010 and 1 April 2012.

of money taken was

The court heard how the case was the biggest

8

Judge Mark Bury praised

£411,388.

The money was used

investigation undertaken

to fund a lavish lifestyle,

by East Riding of Yorkshire

which included Caribbean

Trading Standards, which

cruises and luxury holidays

received numerous

in Florida. The defendants

complaints from customers

also rented a five-bedroom

who had bought pet items

house in Routh, near

from the pair’s websites –

Beverley, which had its own

The court also heard how,

budget and I understand

WINE CON MERCHANT JAILED FOR EIGHT YEARS A con man who duped people into investing in fine wine has been imprisoned, a er an investigation carried out by Tower Hamlets Council and Scambusters.

Spyros Constantinos, 43, used a Canary Wharf address as part of his five-year international scam, which promised people huge returns if they invested in luxury wine portfolios.

Between September 2007 and October 2013, Constantinos used several aliases to swindle 23 people, who gave evidence in court, out of around £1m. These 23 witnesses were selected from more than 200 victims whose estimated £8m passed through Constantinos’s bank accounts. More than 300 complaints were received in total.

At the Old Bailey in July, Constantinos, of no fixed address, was found guilty of 10 offences relating to the fraud. He was sentenced to eight years’ imprisonment.

November 2015

Some of the country’s

Daily Mail. After the story

leading charities have

was published, a letter

promised to improve their

signed by the chiefs of 17

fundraising practice after

UK charities – including the

a widower’s details were

British Red Cross, RSPCA,

passed on 200 times, leading

Cancer Research UK and

Second-hand cars from NEWS independent IN BRIEF dealers and mobile phones generated the most consumer complaints in the past 12 months, according to research by Citizens Advice. Faulty vehicles were the number one gripe with second-hand cars, while substandard mobile phone service accounted for a quarter of the complaints on that topic. Ironically, Citizens Advice has also asked for money 38 times. dealt with a 72 per cent His name is now on lists of rise in the number of vulnerable people that are complaints about coldtraded around the world. calling and a�empted ‘bogus selling’ of callHis son Chris said that blocking services. charities who passed the

to 731 demands for cash

Oxfam – was published in

data on were ‘as bad as

and the loss of ÂŁ35,000 to

The Sunday Times.

the scammers’. Charity

Digest

â—?

Charities pledge to do be er a er scam story

scammers.

In the letter they promised

leaders acknowledged that

to ‘ensure at all times that we

‘there have been times

army colonel, Samuel

protect and safeguard those

where fundraising practice

Rae, was contacted by 12

who might be vulnerable

has failed to live up to

scam firms and fleeced of

from undue pressure’.

high standards. We are

Widower and former

determined to change that.

thousands of pounds – as

According to the Mail’s

well as being hounded by

report, catalogue scammers

No-one should ever feel

charities – after he forgot to

tricked 87-year-old dementia

pressured into giving.’

tick a box when filling out

sufferer Rae into thinking he

a survey to state he did not

had to buy products to win

Commissioner’s Office said

want his details shared.

cash prizes, while charities

the Daily Mail’s evidence

His case made the

continued to bombard him

was ‘concerning’ and vowed

national headlines after

for up to five years after he

to investigate whether any

an investigation by the

asked them to stop. Some

charities had broken the law.

The Information

TECHNOLOGY

The first 3D barcode that can be built into products during manufacture to act as an ‘anti-counterfeit marker’ has been developed by Yorkshire engineers.

Most anti-counterfeit devices are stuck onto the product or its packaging after manufacture, making them easy to copy. However, this newly developed marker is an integral part of the product, virtually invisible to the naked eye and impossible to detect by touch. It can be read using a laser scanner, allowing anything from phones to pills to be tracked and verified as authentic. It was devised by UK company, Sofmat, and developed by the University of Bradford.

November 2015

Smaller grocery stores, newsagents and petrol stations are most likely to sell tobacco products to under18s, a test-purchase operation, coordinated

by CTSI, has found.

CTSI’s Enhancing Local Tobacco Control report includes details of 352 test purchases across nine regions in England.

Almost one in five businesses illegally sold cigareÂ?es to children.

CTSI chief executive Leon Livermore said: ‘Trading standards plays a front-line role in preventing children from obtaining cigare�es and developing a habit that is detrimental to their health and a costly burden to the health service.’

â—?

Source: TS Today Aug-Oct 2015 www.tradingstandards.uk/tstoday

9

We have to ask: ‘Where’s the risk and harm?’ We’ve had to put all our efforts into protecting life and limb SARA BARRY SPEAKING AT CTSI CONFERENCE

If we’ve not got the fire service or the police, then we’ve got chaos.

Trading standards is part of that national system, and I’d like to see that story told in a much better way.

The Institute for Fiscal Studies’ analysis estimates that the Spending Review will seek £19bn of cuts from unprotected departments by 2019-2020, while the Local Government Association projects that budgets for non-ring-fenced council services will drop by 35% by 2020

Abstracts

BUDGET ANALYSIS ARTICLE BY DEREK ALLEN ‘EMPTIER THAN A BANKER’S HEART’

A DELEGATE SPEAKS OUT DURING CTSI CONFERENCE

From TS Today

A 3D barcode allows much more complexity than existing anti-counterfeit systems… For the first time, the same technology and coding can be used on bulk packaging and on the actual product, making it much harder to create and ship fakes DR PHIL HARRISON DIRECTOR AT SOFMAT THE COMPANY THAT DEVISED THE TECHNOLOGY

The wicked part of this offending was to release equity from the victim’s home of 40 years – an act that has had a profound impact on the man’s life JUDGE GEOFFREY MARSON QC NATIONAL TRADING STANDARDS REGIONAL SCAMBUSTER TEAM ARTICLE ‘PAYING THE PRICE’

When we talk about RIPA, traffic data and communications data, perhaps we should talk about ‘trading standards’ and not local authorities, enabling the conversation to focus on the higher levels of criminality – and not whether Edna and her pooch have been down to the common SURVEILLANCE OPINION BY PAUL THOMPSON ‘SUNSET OVER RIPA’

10

Counterfeit sports products cost legitimate EU manufacturers 500m every year and destroy around 2,800 jobs

THE ECONOMIC COST OF IPR INFRINGEMENT IN SPORTS GOODS OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET

Nearly 200,000 potential victims who appear on so-called ‘suckers lists’ have been identified; £2.7m has been stopped from reaching criminals; and more than £13m was lost by 10,843 identified victims NATIONAL TRADING STANDARDS SCAMS TEAM

Source: TS Today Aug-Oct 2015 www.tradingstandards.uk/tstoday

It has sent lobbyists into overdrive, but what will the Tobacco Products Directive mean for trading standards?

Words. Carina Bailey

The Tobacco Products

professionals and within

will the introduction of

and supermarkets. ‘Some

Directive 2014 (TPD) is,

the vaping industry, with

the TPD mean for trading

of these premises have no

arguably, one of the most

contradictory reports

standards officers?

clue about age-restricted

lobbied dossiers in the

published about the

history of the EU. First

potential benefits and risks

standards professional

we would expect a retailer

mooted in 2007, it was

to consumers. In August

and founder of MacGregor

to have in mind, such as

supposed to be a way of

this year, Public Health

Consulting, is supportive

Challenge 25 and Proof

addressing the rapidly

England unveiled a report

of the tobacco legislation

of Age – and that’s a

changing tobacco-products

stating that e-cigarettes

overhaul, but admits the

significant issue,’ said

market, while harmonising

are 95 per cent safer than

regulation of e-cigarettes

MacGregor.

laws across the union.

traditional smoking and

in the UK could prove

Jane MacGregor, trading

sales – the type of things

The TDP also makes

have the potential to

problematic. ‘Reading

a distinction between a

ongoing legal challenges

help smokers quit. This

between the lines, I think

consumer product – which

and a shamed technocrat

report was subsequently

there’s a challenge – and

is how e-cigarettes are

later, member states are

rubbished in the national

the Department of Health

regulated until the directive

finally preparing for the

press, however, for having

recognises that – around

kicks in in May 2016 –

directive – which some

dubious connections with

the types of premises that

and a medically licensed

claim has been watered

the tobacco industry.

will be retailing nicotine

product for e-cigarettes

inhaling products (NIP),’

containing more than

Nine years, three

down by intense tobacco

Cancer Research UK’s

industry lobbying – to

expert in cancer

she said. ‘The range of

20mg/ml of nicotine, which

come into force fully.

prevention, Professor

retailers [selling tobacco-

will be regulated by the

This is expected to be in

Linda Bauld, has said the

related products] is far,

Medicines and Healthcare

May 2016. The directive

charity is funding more

far wider than we have

Products Regulatory

will address a range of

research to deal with the

been used to for traditional

Agency (MHRA, see CPPD,

issues, including the

unanswered questions

tobacco products.’

page 41).

manufacture, presentation

around these products,

and sale of tobacco and

including their longer-

regulations came into force

this distinction means

related products in the

term impact. Meanwhile,

and list a wide variety of

trading standards officers

EU. It will also, for the first

the Welsh Assembly and

retail establishments that

will have to be ‘on top of

time, regulate e-cigarettes

the Scottish government

are now allowed to sell

their game’ when it comes

and herbal products (see

are considering putting

e-cigarettes – including

to enforcement.‘This is an

box, ‘TPD: what it covers,’

further restrictions on the

hairdressers and mobile

emerging, rapidly evolving

on page 14).

use of e-cigarettes, such

phone shops. These will

product area, and keeping

as banning their use in

sell the products alongside

apace of the innovation

much consternation in

public places and their

the more traditional

is going to be quite a

the UK among health

sale to under-18s. So what

outlets, such as newsagents

challenge,’ she said.

E-cigarettes have caused

November 2015

In October, the NIP

Analysis

Huffin’ and puffin’

MacGregor warns that

11

Analysis

2001

2007

2009

2009

First Tobacco Products Directive (TPD) is introduced

Strengthening of the original TPD is mooted

The European Commission formally begins its TPD review

The basic e-cigare„e first emerges on the UK market

Age-restricted sales

Apr 2015

Jul 2015

The EU formally adopts the EU Tobacco Products Directive

Point-of-sale display of tobacco banned in small stores not subject to Sunday trading laws, under the Health Act 2009

UK Department of Health runs a consultation on the draƒ regulations for the sale and manufacture of tobacco products

adjacent to the till.

undermine the advances

‘E-cigarettes are a

expert Veronica McGinley

that had been made in

said that getting a product

de-normalising smoking.

relatively new product

MHRA-approved is

However, she has come

that have exploded onto

expensive, with only one

to view them as a safer

the market – in some

or two products so far

alternative to smoking –

cases, literally – with

achieving authorisation for

although her support is

little or no control over

marketing as a smoking

tempered by caution.

them, and with little or no

‘I am concerned

research available on any

cessation aid. ‘Cost, time taken, and so on have

about the way they are

long-term health effects

meant this is not a popular

marketed and feel we do

they may cause.

route,’ explained McGinley.

need controls on their

‘All of this has happened

sale, advertising and

against a backdrop of

in the types of e-cigarette

promotion,’ she explained.

newer, more stringent

products available –

‘I have issues with the way

controls on conventional

including new devices,

they are portrayed and feel

flavours and hybrid

they are being marketed to

products hitting the market

young people.

With the rapid advance

– there are fears that the

‘We are in strange times

few products with MHRA

when, on the one hand,

approval are already of an

we have tobacco locked

older, less-popular type.

down and out of sight, but,

‘The newer models can

on the other, e-cigarettes

be customised to enhance

are freely marketed,

the vaping experience and

advertised, available at

the efficacy of the nicotine

checkouts, online and in

uptake, so are more

shopping centres. You can

popular,’ McGinley added.

even try before you buy

When e-cigarettes first

12

Apr 2014

in most shopping centres,

emerged on the market,

and e-cigarettes have

McGinley was against

happily moved into that

them because she felt that,

vacant spot where tobacco

ultimately, they would

used to be displayed,

DUNCANˆSELBIE CHIEF EXECUTIVE PUBLIC HEALTH ENGLAND

‘Best estimates show e-cigarettes are 95 per cent less harmful to your health than normal cigarettes, and when supported by a smokingcessation service, help most smokers to quit tobacco altogether’

cigarettes, including the display ban and plain packaging.’ In particular, McGinley has concerns about the way vaping has been portrayed in recent television adverts: ‘For the first time we have seen TV adverts for “vaping�. The first few drew controversy over their depiction of the “freedom� to smoke – in other words, how to flout the smoking ban in a public place. ‘The second gained criticism as it depicted

November 2015

Sep 2015

Oct 2015

Oct 2015

Oct 2015

UK consultation closes

Proxy buying of tobacco and nicotine products regulations implemented under Children and Families Act 2014

Age of sale for nicotine products regulations comes into effect under Children and Families Act 2014

Smoking in cars with children regulations comes into effect under the Children and Families Act 2014

By 31 Dec 2015 UK government’s response to consultation is expected to be published

May 2016

May 2016

Standardised packaging regulations come into effect under the Children and Families Act 2014

Revisions under the European Union Tobacco Products Directive come fully into force

an adult smoking around

seen e-cigarettes for sale in

expect the ECJ to make a

too much burden on

a young toddler, and

shops, shopping centres or

ruling before 2016.

individual businesses,

was seen to be too child

in market stalls, the survey

appealing. Frankly, I

To find out what UK

and on the local/national

found, while 26 per cent

stakeholders thought of

government with regards

thought this advert was

had seen outdoor poster

the draft regulations for

to the appointment of a

poor because the World

adverts and 23 per cent

the sale and manufacture

responsible individual to

Health Organization has

had seen or heard adverts

of tobacco products –

verify compliance. Along

stated there is no safe

on TV or radio.

which will implement

this line, there is the

level of tertiary particulate

the revised TPD – the

ancillary need to verify

matter, and that exhaled

passage through the EU

Department of Health ran a

the age of customers,

vapour from e-cigarettes

legislatures, the tobacco

consultation between July

which might prove difficult

has been shown to contain

industry mounted a huge

and September 2015. This

or ineffective.

levels similar to that of

lobbying campaign against

was concerned with issues

conventional cigarettes.’

measures in the directive

such as additives, health

to ban outright the sale

Pop stars such as Lily

During the TPD’s

‘The alternative option,

designed to make smoking

warnings, pack shapes

of tobacco products

Allen and Bruno Mars

less appealing. This

and cross-border distance

cross-border, could

have also been criticised

lobbying has been widely

sales, among other things.

risk contributing to

for glamorising vaping,

documented by academics

Cross-border issues

with e-cigarettes featuring

and the media. A research

expert Elisabetta Sciallis

disorderly market for

in Allen’s video, Hard Out

paper by the University

warned that there are pros

tobacco products, which

Here. Mars, meanwhile

of Bristol, for example,

and cons in introducing

is uncontrolled, untaxed

posted a tweet in May

described it as ‘massive’,

a registration scheme for

and unaccountable. The

2013, saying he was taking

with more than 160

businesses selling tobacco

impact of this could

up vaping ‘for his mum’, to

lobbyists employed by one

and tobacco-related

prove a further burden

help him quit smoking.

tobacco company alone.

products, or an outright

on society – for example,

ban on cross-border sales.

the potential increase

The Scottish government

There are now three

the enlargement of the

commissioned research

legal challenges being

that showed the majority

brought against the TPD

response, she said:

products by underage

of secondary school pupils

in the European Court of

‘While such a scheme

customers, and the health

in Scotland have been

Justice (ECJ), including one

could potentially offer

and welfare impacts, not to

exposed to e-cigarette

by UK-based e-cigarette

ways to overcome the

mention further demands

marketing. In one week in

company, Totally Wicked.

various issues, it could,

on Customs. In addition,

September, 60 per cent had

Commentators don’t

at the same time, place

there is already the

November 2015

In her consultation

Analysis

Timeline

of misuse of tobacco

13

WHAT ARE E-CIGARETTES? Electronic cigare es (e-cigare es) are ba ery-powered devices that heat a liquid into a vapour, which is then inhaled by the user. The liquid o en contains nicotine and flavours, mixed with a carrier liquid of propylene glycol or glycerine.

Analysis

E-cigare es are not cigare es and do not contain tobacco.

The earliest and simplest e-cigare es look like tobacco cigare es, but newer models look increasingly different.

BRUNO MARS

‘Day 1 E-Cig, Gotta do it!!! This is for you mom’ Posted 12.11 AM, 13 May 2013 Retweets: 11,807,

Favourites: 14,561

alternative ‘grey market’

• Labelling • Ingredients • Tracking and tracing • E-cigare es • Cross-border

distance sales • Herbal products Minimum rules for cigare es, cigars, pipe tobacco, cigarillos (short and slim cigars), smokeless tobacco (snus) and roll-your-own tobacco will also be set out.

There will be a ban on ‘characterising’ flavours and an increase in graphic health warnings introduced.

14

at the same time, in a

route of using online

expected to publish

coordinated manner,

platforms, whereby the

its response to the

and make it the same

consumers and business

consultation before the

across the UK and Europe.

transactions may not be

end of the year.

This would make things

easy to monitor.’

TPD WHAT IT COVERS

The government is

According to Sciallis,

So is the EU – and are individual governments

easier for retailers and enforcers.

‘As it is, we have

there have only been a

– making a rod for their

handful of cross-border

own backs by introducing

separate tobacco

sales cases relating to

more stringent measures

legislation across the UK

tobacco since 2007, with

to curtail smoking? Not

leading to differing display

the majority concerning

according to McGinley:

bans in England and

online sales. She added:

‘The ill health and

Scotland – for example,

‘The majority of cases

detriment caused by

it is an offence to expose

involve UK consumers

tobacco use justify the

under-18s to tobacco

buying abroad, with only a

actions taken.

products in England, but

handful of cases recording

‘We are signed up to the

not in Scotland.’

Even with the new

EU consumer complaints

World Health Organization

against UK traders.’

Framework Convention

directive, it would seem

on Tobacco Control, and

that the smoking picture

this does not indicate that

the tobacco companies do

is set to remain cloudy for

a blanket ban is required

have a bit of a track record

some time to come yet.

from a consumer rights

[for lobbying] this type of

perspective alone. She

thing,’ she said.

However, she said that

advised that a decision

Asked is she would do

should be made with

anything differently if

health and welfare, or

she had a ‘clean sheet’,

Customs and Excise

McGinley said: ‘I’d do

perspectives, also taken

everything we intend

into account.

to do now, but just all

References www.tobaccotactics.org The Guardian Twi er European Anti-Fraud Office article20legalchallenge.com BBC News Ash, action on smoking and health, www.ash.org.uk Daily Mail

November 2015

‘Elderly victims of scams are almost two-and-a-half times more likely to be in residential care two years after the incident, compared with their non-affected neighbours’

CASE STUDY The ease with which fraudsters can steal thousands of pounds from the vulnerable through phone scams

Phone fraud

Stop them getting away with murder

3

phone calls

185

In telephone scam cases, of victims conned out of money were over the age of 55

20%

with losing between £20,000 and £50,000

80% ‘Being scammed can cause health declines faster than non-victims of a similar age’

Source: Louise Baxter, CTSI lead officer for consumer education, and manager of the National Trading Standards Scams Team; and the BBC (www.bbc.co.uk/news)

100 minutes

£12,000 lost by one woman in one transaction

15

Taking thee for a mug in sickness – but not in health I have an equation on my wall at home that gives me a rule

When you’re in a hospital, you can’t go elsewhere to

of thumb to filter consumer stories. It states: the story must

buy a bottle of water (89p more), an A4 refill pad (ÂŁ1.50

at least be of profound impact to a small number of people

more) or a ham and cheese sandwich (40p more at Marks).

– a rogue roofer taking an elderly couple for £100,000 – or,

The story also hinges on the fact that the captive audience

of lesser impact to a large number of people – widespread

is either: ill; visiting someone who’s ill; or working to make

abuse of booking fees on event ticketing.

a person better. I think we’d all agree that none of those

I say ‘at least’ because the ‘jackpot’ stories are when thousands of people stand to lose tens of thousands of pounds when an organisation fails. Of course, these stories are rare – like Northern Rock in 2007 – and we have a programme to make almost every week.

However, there are times when valid stories fall outside this equation because the story seems to say

people should be charged more for essentials because of their situation.

But WHSmith and Marks & Spencer haven’t done anything wrong per se, have they? Within certain criteria they’re entitled to charge what they like, and we don’t know what WHSmith calls the ‘complex situation’

something bad about the

is surrounding hospital

way organisations regard

concessions, which may

the people who pay their

command huge rents and

wages and keep their vans

overheads, pushing their

running.

costs up.

Let’s take the recent discovery that WHSmith – the treasured national retailer where I used to buy my school fountain pen cartridges –

It shows that, whatever is on my wall, you can’t draw up equations to determine what matters to people. We have to acknowledge that, whatever the law

is charging substantially more for the same products when

may say, protecting consumers isn’t just about preventing

sold in hospital outlets. Arguably, this doesn’t fulfil either

financial loss, but also about defending the idea of fairness

side of my equation; we’re talking about pennies, so small

in a broader sense. Of course, that’s a lot harder because it’s

impact for the people involved, and it’s not going to affect

dealing with moral assumptions rather than hard law, but

half the UK’s population.

to completely ignore it means we run the risk of missing

No, the real draw of this story – and why I’d happily

Viewpoint

Words. Ma Allwright // Illustrations. Paddy Mills and Will McPhail

what really matters to people – and then we are in trouble.

stick it on an edition of Watchdog – is that WHSmith, along with Marks & Spencer, which has been doing the same thing, seem to be taking advantage of a captive audience.

November 2015

Ma Allwright is a television presenter and journalist. He presents BBC programmes including Watchdog, Rogue Traders, The Housing Enforcers, and Saints and Scroungers.

17

GANGING The way organised crime groups are tackled is changing,

with local authorities – and trading standards – at the heart of that change

18

Words. Carina Bailey Images. Shu erstock

Organised crime groups (OCGs) are everywhere, operating as multi-commodity businesses in every county up and down the UK. Traditionally, they were seen as ‘a police issue’. However, in this era of declining resources – and when protracted and expensive covert operations aren’t always possible – government has recognised that a multi-agency approach is the single, most effective way

Organised crime

UP

of disrupting OCGs, which will increasingly require the expertise and knowledge of trading standards.

OCGs blight communities, create an atmosphere of fear and intimidation and undermine a community’s confidence in the authorities – such as the police or local authority – which are supposed to keep them safe.

Organised crime is a national security threat that is estimated to cost the UK at least £24bn a year, while the psychological harm caused to victims is unquantifiable.

Law enforcement agencies have calculated that there are around 5,600 active organised crime groups operating against the UK, comprising almost 40,000 people.

Traditional key threats such as firearms, drugs, acquisitive crime, counterfeiting and money laundering remain, but as new and emerging threats – including child sexual exploitation, organised immigration crime, slavery, cyber crime and the importation of illicit commodities, such as medicines, tobacco and alcohol – begin to occupy the criminal landscape, new methods of partnership working with trading standards provide improved capabilities to tackle these threats.

19

Organised crime

Run by smart, callous people, OCGs tend to take advantage of vulnerable people in a community, such as the homeless, vulnerable youths, or simply the desperate.

This means that the real perpetrators of an OCG can

• Protect – increasing protection against serious and organised crime • Prepare – reducing the impact of this criminality where it takes place

remain distanced from their crimes, while the vulnerable

Agencies are now expected to follow the four Ps to better

take all the risk. This ‘risk’ could be storing or distributing

protect their citizens and communities – which means

drugs, weapons, money, providing access to bank

working together on a more formal footing.

accounts, transport or something as simple as acting as a lookout.

A few years ago, because OCGs were seen primarily

Local profiles Underpinning the four Ps is a ‘local profile’. This is a

as a police issue, authorities tended to work in silos, not

document put together by each county police force, which

questioning what greater force might be behind that illicit

spells out the threats, harms and the risk of organised

alcohol or novel psychoactive substance trade in their

crime within a community.

communities, for example, or who was behind the gangs of delinquent youths patrolling a residential street.

However, this culture began to change when, in

The aims of the local profile is to develop a common understanding with local partners of the threats, vulnerabilities and risks relating to organised crime.

October 2013, the government launched its Serious and

Partner agencies, including trading standards, provide

Organised Crime Strategy. This covers four core themes

information to support this. Once this jigsaw puzzle of

– known as the four Ps – designed to provide a multi-

information has been put together, an action plan can be

agency and partnership-based, holistic response to tackle

created – aligned to the four Ps – to deal with an OCG

organised crime:

threat, which will determine local programmes of activity

• Pursue – prosecuting and disrupting people engaged in serious and organised crime • Prevent – preventing people from engaging in serious and organised crime

and action plans, and may include the most appropriate agency to take the leading role.

Taking the lead While it’s not usual for a trading standards department to be identified as a project lead, this is exactly what happened to Derbyshire Trading Standards during investigations into a suspected illegal tobacco OCG, which began in 2013. It started when they spotted a rise in a ‘certain type’ of retail outlet selling illegal tobacco and a ‘form’ began to emerge.

Each shop held abnormally small quantities of other stock, such as sweets, fizzy drinks, toilet rolls, kitchen rolls – and, of course, illegal tobacco concealed in its premises. Steve Allen, trading standards manager – fair trading at Derbyshire County Council, described it as a ‘commonality’ that appeared to link the cases.

‘We made discreet enquiries into the individual shops,’ explains Allen. ‘It was clear there was the potential for some significant form of organisation behind it.’

Following discussions with Derbyshire police and the Government Agency Intelligence Network, Derbyshire TS was nominated as the lead agency.

A rise in illegal tobacco at a ‘certain type’ of retail outlet aroused suspicion

By early 2014, the problem was at its peak, involving a number of towns including: Ilkeston, Long Eaton, Swadlincote, Heanor, Ripley, Chesterfield and Belper.

20

November 2015

COALITION AGAINST COUNTERFEITS

‘Trading standards’ potential and their powers are immense in tackling organised crime’

Some contained a single outlet, while others had multiple shops.

‘We understand that, at that time, we were probably the first trading standards department to have that lead role,’ says Allen, whose team was given this responsibility around the same time the Home Office was looking to extend its multi-agency partnership approach across the UK.

Tactics ‘We were quite clear early on that we are a local authority with local authority boundaries. To a greater extent we didn’t believe that we should do anything significantly differently to what we had already planned to do anyway.’

But there was one novel tactic employed by Allen and his team that was to set the course of the entire operation.

Instead of seeking prosecution, Derbyshire TS – strongly backed by Derbyshire police – sought to inform landlords of premises about what they had found, what they thought was happening and the risks posed to the landlord’s legitimate lettings business.

To achieve this, a joint, ‘high-level’ letter was compiled and sent to landlords. Where appropriate, a visit by a team of both trading standards and senior police followed.

The letter flagged up general issues identified at their premises, why the sale of illegal tobacco was a problem and specifically that it may be something they wished to be aware of.

The team was so thorough they flagged up clauses in the landlords’ own tenancy agreements that prohibited illegal activity and nuisance to neighbours. According to

November 2015

Recently, up to 18 TSOs have been assigned to larger operations to tackle the problem, alongside representatives of other services, such as the police and HM Revenue and Customs, as part of a pilot scheme.

This has brought together local and national enforcement bodies to create a tactical coordinating group to ensure the right agencies are assigned to lead and support on each operation.

Organised crime

SHANE ROBERTS DETECTIVE CHIEF INSPECTOR

Over many years, trading standards officers (TSOs) have built a relationship with enforcement agencies in north Manchester in a bid to tackle major counterfeiting activity in the Strangeways area.

As a result, trading standards and its partners have since cracked down on intellectual property crime, non-compliant businesses, illegal working and planning issues, focusing on new solutions to entrenched problems – by using laws on tax evasion, nonpayment of business rates and Proceeds of Crime Act, for example.

Results have included the seizure of £5m in counterfeit goods during a multi-agency week of action last year to dismantle organised crime across Greater Manchester.

21

PIPER’S TOP TIPS TO TSOs • Information

sharing is simple and easy to put in place – information shouldn’t be the barrier

Organised crime

• Trading standards

managers should build a good relationship with their local CSP – ask to join if your team is not already a member. If you don’t know who your CSP manager is: Do an internal check to identify them (generally, a CSP manager is a local authority officer) Arrange a meeting Find out what OCGs look like in your area Identify what powers your team has to help a CSP manager

• Start to really

understand the impact of OCG in your area

Piper says: ‘All counties have OCGs. If your area has a ‘businessbased’ OCG, I would say that, 90 per cent of the time, trading standards can support some intervention in the OCG in a positive way.’

22

Allen, the risk to a landlord could be substantial: ‘If they continue to allow individuals to use their property, or be a tenant and continue to take rent, the money they receive could be considered criminal property.’

A common response from landlords was that they needed tenants to be prosecuted before they could end a tenancy. Allen’s team countered by explaining this didn’t have to be proved beyond reasonable doubt, only on the ‘balance of probabilities’.

Over a period of time, landlords sought to end the tenancies or kicked people out for being in breach of their tenancy. This resulted in 12 premises being shut down, but shops continue to pop up. About seven now remain.

‘We don’t have statutory powers to close shops, it’s a means by another route to do that,’ says Allen. ‘We still need to prosecute people, and we are not saying we won’t anymore, we are just trying to balance an approach of disruption.’

Allen’s team believes a ‘business’ of this nature would turn over about £200,000 per year – a conservative estimate.

The cigarettes were sold for about £3.50/£4 a packet – less than half the price of a legitimate pack or equivalent hand-rolling tobacco. The dangers to the community of this practice are tenfold: ‘You can smoke at least twice as much for the same money,’ says Allen. ‘So people smoke more, and people are more likely to take it up – including kids. It’s easy to become addicted.

‘There’s probably several times the risk of a fire being caused by illegal tobacco, too. All illegal cigarettes fail certain safety standards for cigarettes. Legitimate

November 2015

STEVE ALLEN TRADING STANDARDS MANAGER - FAIR TRADING

cigarettes will extinguish themselves if they are left. Illegal

to complete. Trading standards have provided advice to

ones won’t.’ In 2012, a coroner linked 71-year-old June

businesses when particular types of vehicle – which look

Buffham’s death in Lincolnshire to Jin Ling cigarettes, after

like they’re carrying out some sort of trade, or carrying

she fell asleep while smoking.

scrap metal, for example – have been stopped.

Prosecutions made

legitimate traders. They’re pleased to see we’re out and

According to Allen, tackling OCGs, in whatever form they

about and conducting checks. They can feed back to us if

fall, is ‘not just about criminal investigations, it’s about

they are aware of non-legitimate traders, too.

what other tactics you might have [at your disposal] to cause people problems’. For example, business rates relief is only available to traders who run one shop. If it is found

Gamble says: ‘We’ve had some good feedback from

‘We’ve found evidence of some rogue trading – not a great deal – but every little bit of intelligence helps.’

they run two, the district council responsible for collecting

Benefits of interventions

those rates could take action.

DCI Shane Roberts at Bedfordshire Police, who is

Since April 2014, Derbyshire TS has made 16

currently on secondment to the Strategic Centre for

prosecutions against individuals selling illegal tobacco,

Organised Crime, is a fervent supporter of partnerships

which has resulted in three custodial sentences.

and information sharing: ‘The partnership approach

Half a dozen operations completed

to tackling organised crime – including with trading standards as they have unique skills, powers, information

Not all trading standards’ involvement will be so intense.

resources and capabilities – working together and sharing

In Northamptonshire, police are also working with wider

information has a far greater impact in preventing harm.’

enforcement teams, including trading standards, the

He is particularly complimentary of the input trading

Vehicle and Operator Services Agency (VOSA), council

standards, licensing and others can make, too. ‘Trading

enforcement teams and others to disrupt OCG activity

standards’ potential and their powers are immense in

using automatic number plate recognition technology

tackling organised crime.’

(ANPR) to target passing vehicles.

Carol Gamble, community safety manager at

His community safety ‘partner in crime’, Joy Piper, who is Central Bedfordshire’s Community Safety Partnership

Northamptonshire County Council, was first approached

(CSP) manager, is also keenly aware of the contribution

by Northamptonshire police in spring 2015 to help tackle

trading standards can make to tackling an OCG.

rogue traders in Oundle.

Gamble agreed, and her team has since completed about half a dozen operations, each taking up to a day

November 2015

Organised crime

‘We have learned an awful lot about something we didn’t know too much about before. It has made us think more strategically about how to tackle a problem, even though we are still keen to make sure our primary focus is local - because that’s who pays our wages’

‘If the criminality aspect of an OCG is still to be determined, trading standards have the ability to knock and enter a premises without police powers. We can utilise

23

Organised crime

their resources in an area that is causing a problem in a community,’ she says.

The duo know first-hand how important working in partnership is from their own experience of setting up an operation to tackle a class A drugs OCG that was operating in Leighton Buzzard in 2014.

ALL ORGANISATIONS, INCLUDING LOCAL AUTHORITIES, HAVE A ROLE IN TACKLING ALL TYPES OF ORGANISED CRIME

Fruitful partnership In 2012/13, Central Bedfordshire CSP was one of the first to include tackling organised crime in its strategic and tactical documents, and the area’s first local profile document was

operating], or alters what it’s doing, is an absolute success,’

developed in 2013/14.

enthuses Piper.

In this instance, Piper was given the responsibility

More importantly, when the OCG was rechecked

of being operational manager to lead the multi-agency

12 months later, the threat had reduced further to

response. This meant she was given access to police

‘infrequent criminality’. ‘The structure of the OCG had

intelligence not previously shared with the CSP.

been dissolved,’ says Roberts.

Piper alerted Roberts to information that Central Bedfordshire’s CSP held that could add value to the

Lessons learned

intelligence picture.

Allen says there was much more administration

This proved to be a fruitful partnership, and led to

work involved than he had originally anticipated, but

the CSP sharing information about familial members of

described his team’s experience of leading this OCG as an

the OCG, the businesses they were operating, and other

‘overwhelmingly positive’ one.

associations that police had previously been unaware of.

This information sharing identified a restaurant

‘We have learned an awful lot about something we didn’t know too much about before. It has made us think

owned by the OCG, a hairdresser’s, and a pub that it was

more strategically about how to tackle a problem, even

controlling.

though we are still keen to make sure our primary focus is

The team looked at the collective powers at their disposal and decided to conduct a joint licensed premises visit to the pub.

Piper says this sort of action can include fire officers checking a premises complies with fire regulations, food

local – because that’s who pays our wages.’

Allen credits this operation with giving Derbyshire TS better networks and relationships with other agencies – as well as a higher profile among them.

Gamble has been equally impressed with this new

hygiene inspectors carrying out normal, industry-expected

partnership approach to OCG. ‘I think it’s an excellent idea.

spot checks where food is sold, and trading standards

We shouldn’t be working in a silo, or with the restrictions

officers conducting underage alcohol sales, for example.

of borders.’

Piper adds: ‘Any local authority would be able to enter these [types of businesses] and do these basic checks.’

In the Leighton Buzzard example, during routine

Allen adds: ‘Organised crime is so big its tentacles are everywhere within the UK. All organisations, including local authorities, have a role in tackling all types of

hygiene checks, officers discovered a premises was

organised crime. Whether it’s trafficking or drugs, the

employing illegal immigrants and passed the information

police can’t do it alone.’

on to the relevant authorities.

Ultimately, the outcome of this multi-agency action saw the pub temporarily shut down and the licensee changed.

According to the ‘threat scale’ used to determine the nature of an OCG, the action taken saw threat levels reduce from ‘serious and frequent criminality with visibility and local impact’, to ‘moderate scale and local impact’.

‘Anything that reduces, disrupts or stops [an OCG from

Sources The information for this article was obtained from several interviews and the following reports: Serious and Organised Crime Local Profiles: Illustrative Profile March 2015, produced by the Home Office in collaboration with the police, College of Policing, National Crime Agency and Local Government Association.

National Strategic Assessment of Serious and Organised Crime 2015.

24

The Local Government Association report: Tackling serious and organised crime: a local response.

SPONSORED BY

Buying

Words. Professor Paula Giliker Images. Shu erstock

POWER Improving the consumer’s lot: the impact of the

European Directive on Consumer Rights on UK law November 2015

25

SPONSORED BY

Academic research

SHOPPERS WILL NO LONGER BE TRAPPED INTO BUYING UNWANTED TRAVEL INSURANCE OR CAR RENTALS WHEN PURCHASING A TICKET ONLINE

The 2011 Consumer Rights Directive (2011/83/EC) is a European measure which, in the words of the European Commission itself: ‘Aims at achieving a real businessto-consumer (B2C) internal market, striking the right balance between a high level of consumer protection and the competitiveness of enterprises.’1 Then EU Justice Commissioner, Viviane Reding, commented in 2011 that the ‘adoption of the new EU Consumer Rights Directive will strengthen consumer rights by outlawing internet fraudsters who trick people into paying for horoscopes or recipes that appear to be offered for free.

‘Shoppers will no longer be trapped into buying unwanted travel insurance or car rentals when purchasing a ticket online. And everyone will have 14 days if they wish to return goods bought at a distance, whether by internet, post or phone.’2 The UK complied with the timetable – set by the

distance, or off premises (previously seven days).

Directive – that each state should adopt and publish,

This means that consumers in these cases can

by 13 December 2013, the laws, regulations and

return the goods for whatever reason and obtain

administrative provisions necessary to comply with this

a refund. When a seller has not clearly informed

Directive, and that those measures should be in force

the customer about the withdrawal right, the

from 13 June 2014.3

return period will be extended to a year

The aims of the Directive are straightforward: to update and simplify the regulation of contracts

• Clearer information to be provided for consumers in all types of contract. The trader must provide

involving doorstep selling (or ‘off-premises contracts’)

certain information (for example, on the main

and distance sales (for example, on the internet) with

characteristics of the goods, services and digital

additional provisions granting ‘other consumer rights’

content) before the consumer is bound by the

– for example, protection against unsolicited sales and

contract

additional charges that have not been expressly agreed

The Directive thus provides a single set of core rules for

in advance. The Directive places remedies largely at

distance contracts (sales by phone, post or internet) and

the discretion of the member state. The key benefits to

off-premises contracts (sales away from a company’s

consumers are as follows:

premises, such as in the street or the doorstep) in the EU.

4

26

• 14 days to change your mind for goods, services and digital content contracts concluded at a

• The elimination of hidden charges, including surcharges for the use of credit cards and hotlines

This is intended both to create a level playing field, but also

• Increased price transparency

especially for sales by internet.

to reduce the transaction costs for cross-border traders,

November 2015

Guiding Principles for EU Legislation, at 5(c),5 to copy out the exact wording of the Directive when possible, unless doing so would adversely affect UK interests, for example, by putting UK businesses at a competitive disadvantage compared with their European counterparts. Such an approach is deemed to make it less likely that the UK will be criticised for incorrectly implementing EU law, but also avoids so-called ‘gold-plating’ – that is, going

Academic research

SPONSORED BY

beyond the protection required at EU level, which would place UK businesses at a disadvantage to their European counterparts. The downside, however, is that it introduces into UK law ‘European’ terminology, which is often difficult to interpret and understand.

Nevertheless, parallel to these developments, the UK

Implementing the Directive in the UK

government was consulting on its own Consumer Rights

The UK transposed the Consumer Rights Directive into

Act. This Act, which came into force on 1 October 2015,

domestic law correctly, but not in a straightforward

has been heralded by consumer organisation Which?

manner. Article 19 of the Directive – which seeks to

as ‘the biggest shake up in consumer rights law in a

prohibit traders from charging consumers fees that exceed

generation’.6

the actual cost borne by the trader for use of a certain

Its aim is to simplify, strengthen and modernise UK

means of payment – was introduced into UK law on 6 April

consumer law, consolidating in one place key consumer

2013 through the Consumer Rights (Payment Surcharges)

rights covering contracts for goods, services and digital

Regulations 2012/3110.

content, and the law relating to unfair terms in consumer

This was over a year before the 13 June 2014 deadline set by the Directive, but the government sought to respond

contracts.

In addition, it introduces easier routes for consumers

to public outrage at the surcharges levied on debit and

and small and medium-sized enterprises (SMEs) to

credit card transactions by certain travel companies,

challenge anti-competitive behaviour through the

notably airlines. Otherwise the remaining provisions of the

Competition Appeal Tribunal (CAT), and clarifies the

Directive were implemented by the Consumer Contracts

maximum penalties that the regulator of premium

(Information, Cancellation and Additional Charges)

rate services can impose on non-compliant and rogue

Regulations 2013/3134, which came into force on 13 June

operators. It also consolidates enforcers’ powers as

2014 as planned.

listed in Schedule 5 to investigate potential breaches

As the name suggests, this set of regulations covers

of consumer law, and clarifies that certain enforcers –

the range of issues dealt with in the Directive (outlined

such as trading standards – can operate across local

above). It also follows the policy stated in the Government’s

authority boundaries.

November 2015

27

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Civil courts and public enforcers are given greater flexibility to take the most appropriate action for consumers when dealing with breaches, or potential breaches, of consumer law, and to impose a duty on letting agents to publish their fees and other information. Further requirements relate to the resale of tickets for recreational, sporting and cultural events.

What is clear is that there is a degree of overlap between the Consumer Rights Directive and the Consumer Rights Act. Both protect consumer rights and share the goal of promoting the consumer’s interests, while rendering it easier for traders to comply with the law, which had failed to keep up with technological change.

Do I still need to know about the EU Directive?

The succinct answer is yes. Despite the obvious importance of the Consumer Rights Act 2015 (CRA 2015), it is distinct from both the Consumer Rights Directive (CRD) and the sets of regulations that introduce it into UK law.

The CRA 2015 does not replace the regulations implementing the 2011 Directive and, on this basis, the 2012 Consumer Rights (Payment Surcharges) and 2013 Consumer Contracts Regulations exist side-by-side with the CRA 2015.

This is somewhat confusing given that one of the aims of the 2015 Act was to incorporate provisions deriving from the EU law, such as the Consumer Sales Directive 99/44/EC and Unfair Terms Directive 93/13/EEC, whose transposition into domestic law had led to inconsistencies and overlaps.

The government did acknowledge the difficulties of this arrangement but, in the Explanatory Notes to the Act,7 argued that by taking into account the definitions and measures contained within the CRD in developing proposals for the Consumer Rights Act 2015, they had nevertheless created a simple, coherent framework of consumer legislation.

This leaves us, however, with an uneasy compromise.

The CRA 2015 covers some of the provisions of the 2013 Regulations, but not all. Here the potential for confusion lies. The CRA 2015 implements the CRD in relation to the enforcement of information requirements in the following sections: 11 (Goods to be as described); 12 (Other pre-contract information included in contract); 36 (Digital content to be as described); 37 (Other pre-contract information included in contract); and 50 (Information

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November 2015

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about the trader or service to be binding). Furthermore, section 28 deals with default rules for the delivery of goods, and section 29 the passing of risk in goods.

All these matters were previously addressed in the 2013 Regulations. All other provisions remain solely the preserve of the 2012 and 2013 Regulations.

That this leads to complexity may be shown by a straightforward example. Article 5 of the 2011 Directive makes provisions for ‘information requirements for contracts other than distance or off-premises contracts’.

Regulation 9 of the 2013 Regulations introduces this into UK law as ‘information to be provided before making an on-premises contract’. While the wording used is very similar to the Directive, the structure is different. In Article 5(1), CRD sets out all the information to be provided to consumers. The more succinct Regulation 9 merely provides that the trader must give or make available to the consumer the information described in Schedule 1 in a clear and comprehensible manner (assuming the information is not already apparent from the context) if the consumer is to be bound. Regulation 9(3) adds that any stipulated information that the trader gives to the consumer is to be treated as a term of the contract.

But this is not the end of the story. On-premises consumer contracts for the sale of goods and digital

Your Connection

content are also dealt with in the Consumer Rights Act 2015 (Part 1). Sections 11, 12, 36 and 37 deal with pre-contractual information to be given in a contract for the sale of goods or digital content. So, while section 11 provides that every contract to supply goods by description will contain a term that the goods will match the description, section 11(4) adds that: ‘Any information that is provided by the trader about the goods and is information mentioned in paragraph (a) of Schedule 1 or 2 to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) (main characteristics of goods) is to be treated as included as a term of the contract.’8

THE CRA 2015 COVERS SOME OF THE PROVISIONS OF THE 2013 REGULATIONS, BUT NOT ALL. HERE THE POTENTIAL FOR CONFUSION LIES November 2015

Trading Standards • Police • Environmental Health • Animal Health Kenyon Block Consultants Specialist Recruitment

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Similarly, section 12(2) (dealing with other pre-contract

of European consumer legislation has been reduced to low

information included in the contract) provides that:

visibility secondary legislation, referenced in passing in

‘Where Regulation 9, 10 or 13 of the Consumer Contracts

ground-breaking domestic legislation. For those aware of

(Information, Cancellation and Additional Charges)

the troubled history of the 2011 Directive, which dates back

Regulations 2013 (SI 2013/3134) required the trader to

to a review of EU consumer legislation in 2004 and which,

provide information to the consumer before the contract

after fierce negotiation at EU level, had been reduced

became binding, any of that information that was provided

considerably in ambition and scope,9 this is a further blow

by the trader other than information about the goods

to attempts by the European Commission to establish a

and mentioned in paragraph (a) of Schedule 1 or 2 to the

harmonised level of consumer protection across the EU.

Regulations (main characteristics of goods) is to be treated

The Commission, however, does remain undaunted and its

as included as a term of the contract.’

more recent proposal, announced in 2015, is for common

Equivalent provisions arise under sections 36(3) and 37(2) in relation to contracts to supply digital content.

It is hard to deny that this is complicated even to

contract rules for online purchases of digital content and tangible goods across the EU.10 Nevertheless, in the battle for consumer rights, it

those familiar with the legislation in question. The

seems – in the UK at least – that national legislation

Consumer Rights Act directs the consumer to consult a

remains at the forefront of consumer law development.

distinct set of regulations whose provisions then refer

Yet, in the excitement surrounding the introduction of the

the reader to the information requirements set out in

Consumer Rights Act, it is important not to forget that the

its Schedule. It is worth remembering at this stage that

2012 and 2013 Regulations also introduce important rights

this is consumer legislation – that is, legislation seeking

that provide part of the armoury of UK consumers today.

to protect and inform the often weaker party in a B2C transaction, who will possess a limited awareness of his or her legal rights.

The Consumer Rights Act 2015 therefore gives effect to part of the Consumer Rights Directive. The consumer

Paula Giliker is a professor in comparative law at the University of Bristol.

will find the relevant provisions of the CRD spread over three pieces of UK legislation, with no common title nor structure. This is disjointed to say the least and does not make for clear and accessible legislation.

Navigating consumer rights Consumers in recent years have been the beneficiaries of two legislative instruments that seek to increase the protection offered to consumers entering into transactions with businesses, notably those undertaken at a distance or off-premises. Both the 2011 Directive and 2015 Statute proclaim their status as measures that seek to protect consumer rights. Nevertheless, it is domestic legislation that has received the loudest fanfare by dint of its scale and impact on previous legislation: it replaces in full the Unfair Terms in Consumer Contracts Regulations 1999 and Sale and Supply of Goods to Consumers Regulations 2002 and, for business to consumer contracts, the provisions of the Sale of Goods Act 1979, the Unfair Contract Terms Act 1977, the Supply of Goods and Services Act 1982 and the Supply of Goods (Implied Terms) Act 1973.

It is disappointing that, in contrast, an important piece

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References 1. ec.europa.eu/consumers/consumer_rights/rights-contracts/directive/ index_en.htm, accessed 9/10/2015. The Directive replaces Directive 97/7/ EC on the protection of consumers in respect of distance contracts and Directive 85/577/EEC to protect consumers in respect of contracts negotiated away from business premises.

2. Press Release MEMO/11/450 (Brussels, 23 June 2011).

3. Art. 28, Consumer Rights Directive.

4. Arts 23 and 24, Consumer Rights Directive.

5. www.gov.uk/government/uploads/system/uploads/a achment_data/ file/78800/Guiding_Principles_for_EU_legislation.pdf, accessed 9/10/2015.

6. www.which.co.uk/consumer-rights/regulation/consumer-rights-act, accessed 9/10/2015.

7. Para. 13.

8. Section 11(5) also reproduces Reg. 9(4) of the 2013 Regulations.

9. For a sample of critical academic commentary see C.Twigg-Flesner, ‘No sense of purpose or direction? The Modernisation of European Consumer Law’ (2007) 3 European Review of Contract Law 198; C. Twigg-Flesner and D. Metcalfe, ‘The proposed Consumer Rights Directive – less haste, more thought?’ (2009) 5 European Review of Contract Law 368; and H-W. Micklitz and N. Reich, ‘Crónica de una Muerte Anunciada: The Commission Proposal for a “Directive on Consumer Rights” ’ (2009) 46 Common Market Law Review 471.

10. The Commission recently engaged in a public consultation on contract rules for online purchases of digital content and tangible goods, which ended on 3 September 2015. It is envisaged that proposals for a new directive or regulation will follow. The EU’s Digital Single Market Strategy adopted by the Commission on 6 May 2015 established a holistic approach, encompassing the most important barriers that currently hinder cross-border e-commerce. The main problem identified as hindering business and preventing consumers from fully benefiting from the Digital Single Market was the differing contract rules that apply in cross-border sales within the EU.

KENYON BLOCK Consultants Specialist Recruitment

Tel: 020 8360 7289 www.kenyonblock.com

Associate Member of Chartered Institute of Environmental Health

Making a Words. Steve Playle Images. Shu erstock

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November 2015

Over the course of one year1, £1.73bn was reportedly lost by UK investors, who were scammed by fraudsters committing ‘boiler room fraud’ – and that figure is most likely just the tip of the iceberg.

Boiler room fraud is a type of 2

investment fraud that has seen the elderly and vulnerable lured into handing over anything from a few pounds to hundreds of thousands of pounds. The clever part of ‘investment fraud’ is that many investment returns are promised over a number of years, so when the victim finally realises they have been scammed, the fraudsters are long gone. In the City of London, this is a growing problem.

It is very time consuming and expensive to prosecute for fraud once victims come forward months – or even

Westminster Trading Standards is responsible for the introduction of section 75 of the London Local Authorities Act. It applies to mailforwarding businesses and requires them to take measures to properly identify their customers, and to keep copies of original documentary evidence, such as passports and photo driving licences.

Mail forwarders must also be registered with their local trading standards service, and criminal offences are commi ed where the legislation isn’t followed.

standards, HM Revenue and Customs and the Financial Conduct Authority.

Multi-agency meetings take place every two weeks, where the latest intelligence from Action Fraud and other agencies is discussed and analysed. As part of the operation, intelligence databases are also checked for the previous history of businesses and individuals being investigated, and a team of multi-agency officers are deployed at premises where the frauds are centred.

As part of this operation, the City of London Police has used its expertise and access to millions of fraud reports to calculate that each City-based boiler room is making, on average, almost £1.25m. As the number of people in the UK aged over 85 is predicted to

years – after they have been scammed,

double in the next 20 years, scams

so in 2014 Operation Broadway was

aren’t going away.

launched in a bid to prevent emerging boiler room fraud

Investment fraud victims are duped with the promise

becoming established. It is hoped it will limit the potential

of being able to make high percentage returns on

damage to public confidence, and the reputation of, iconic

investments, when the reality is that their money is being

London districts where these frauds are taking place, such

used to cover the running costs of the boiler rooms and

as the City of London, Westminster and Canary Wharf.

fund a life of excess and luxury for the criminals.

Operation Broadway is part of the City of London

The ‘boiler room’ has traditionally consisted of an

Police’s overall strategy to tackle organised crime, and

office full of young, confident, commission-driven telesales

aims to create a hostile environment for the investment

operators who cold call elderly victims from a ‘suckers

fraudsters to operate in. Broadway brings together the

list’3. They offer high-percentage returns on a variety

City of London Police, the Metropolitan Police, trading

of ‘investments’, including gold, diamonds, fine wine,

mint November 2015

Operation Broadway

LONDON LOCAL AUTHORITIES ACT

Tackling investment fraud in the City of London 33

Operation Broadway

DAY OF ACTION Earlier this year, a highprofile ‘day of action’ was held where a number of multi-agency officer teams carried out inspections, accompanied by TV news crews, to raise the profile of Operation Broadway.

The opportunity was also taken to hand out thousands of advice leaflets to commuters arriving in London.

carbon credits and, more recently, airport parking spaces.

The leaflet campaign was focused on an appeal for office workers to be on the look-out for criminal groups who set up shop in their buildings and work around the clock, a empting to pressurise people into handing over their savings and unwi ingly become the latest victim of a crime that damages and destroys lives.

week we were speaking to an 85-year-old who lost around

Tell-tale signs of an office being used as a fully functioning boiler room include companies that make up-front cash payments and choose short-term leases, conduct unusual hours of business and do not display their name in reception areas.

The investments often do not exist, and even if they do, the promised returns fail to materialise. The products being sold are not under the remit of the Financial Conduct Authority, which means that consumer protection and access to redress schemes are non-existent.

Based on my experience with the low reporting levels for doorstep crime, my guess is that actual losses each year could be well in excess of £10bn. To add insult to injury, known victims are eventually contacted by the same fraudsters operating a ‘recovery room’ scam, where they promise to get the original failed investment back on track for a substantial fee. The victims are very real and just last £200,000 over the course of 24 months in a carbon credit scam. The real fear is that, with recent changes to pensions rules and the ability for cash to be released early, this will simply lead to a rapid rise in this type of fraud.

To give an air of authenticity to investment fraud, a prestigious address is often given in sales literature and on websites, such as an office in Tower 42 – which is still better known as the NatWest Tower and is an icon of London’s financial district skyline. Very often, addresses in the City of London, West End and Canary Wharf are used.

These premises are often plush offices acting on behalf of lots of different businesses. Enablers for investment fraud include the virtual and serviced office accommodation that criminals are desperate to have access to, to give their fraudulent business plan some apparent credibility.

These legitimate office providers simply accept a monthly payment of a few hundred pounds from the fraudsters, and in exchange they will forward any mail – and even answer the phone with the name of the rogue business. The potential victims, of course, are none the

Workers tend to be young, brash and unruly, use false names for themselves and the company they are supposed to be representing and spend lots of time reading from pre-prepared scripts.

Source: www.actionfraud.police.uk/ operation-broadway

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November 2015

wiser and they are simply reassured that they are communicating with a prestigious London address, which makes them even more likely to invest.

There are hundreds of virtual office providers right across the UK who are more than happy to provide this mail forwarding service for any business that pays the going rate. Part of Operation Broadway’s purpose is to rigidly enforce their compliance with the incredibly useful provisions of Section 75 of the London Local Authorities Act 2007 (LLA) (see panel, ‘London Local Authorities Act’).

and virtual office providers to know who they are dealing with, to weed out the rogues before they start operating.

Trading standards’ input into Operation Broadway is supported by a full-time officer from the Tri Region Scambusters team, which covers London, the East and the South East of England. Entry to the mail forwarders is made using Regulation 21 of the Consumer Protection

THE VICTIMS ARE VERY REAL: ONE 85 YEAR OLD LOST AROUND £200,000 OVER 24 MONTHS IN A CARBON CREDIT SCAM

From Unfair Trading Regulations 2008, typically by a team of two trading standards officers and two police officers.

others – are also applying their own pressure to mail

This multi-agency approach not only demonstrates to

forwarding tenants to keep the investment fraudsters out.

traders how seriously this type of offending is taken, but

City of London Trading Standards and Operation

also makes it far easier to obtain genuine details of the

Broadway are committed to continuing this vital work.

individuals concerned. Once inside, officers will inspect

By using intelligence, working in effective partnerships

the premises and, if criminal activity is suspected, powers

with other law enforcement agencies and by engaging

to seize documents and any other evidence will kick in.

with businesses, we are making a difference – Broadway

Servcorp UK became the first company to be convicted under Operation Broadway. On 17 July 2015, they were fined £21,000 and ordered to pay £11,500 costs after

Operation Broadway

These provisions mirror requirements under the Money Laundering Regulations 2007, and compel mail forwarders

even won the ‘team of the year’ accolade recently in the City of London Police annual awards.

I think there is a fundamental role for the banks to

pleading guilty to seven offences of failing to keep proper

play here, too. If robust mechanisms can be established to

records relating to mail forwarding clients.

detect and intervene when money is shifted from victims’

On 23 July Regus Management UK was convicted, not

accounts to the fraudsters, then the problem just might be

only for failing to keep proper records, but also for telling

solved. Banks – much like TSOs – have a duty of care to do

a consumer that a mail forwarding client had a physical

the best they can to protect people.

presence at their offices, when this simply wasn’t true.

Regus, the biggest serviced office provider in the UK, was found guilty of six offences and fined £11,000, and also had to pay City of London Trading Standards costs of £16,500.

Although these fines are probably just loose change for these big companies, the reputational damage is very real, and we are now seeing concerted efforts by them to tackle

References: 1. Between October 2013 and September 2014.

2. Boiler rooms – a term used to describe a hub of sales people usually engaging in high-pressure selling of worthless investments or other items. ‘Boiler’ is used because of the high pressure.

3. A ‘suckers list’ contains the names and addresses of potential victims who are targeted by scammers and who are believed to be particularly susceptible.

It may be that they have succumbed to previous scams, or they are known to have an interest in legitimate stocks and shares.

investment fraud. In addition, the owners of prestigious buildings in the City – the Cheesegrater, Tower 42 and

November 2015

Steve Playle is the City of London Trading Standards manager.

35

BREAKI BAD Helping to protect customers from fraud, sharp

practices and scams is the new mantra in retail banking at the Royal Bank of Scotland

SPOTLIGHT TERRY LAWSON

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NG Words. Carina Bailey Images. Brendan MacNeill

37

Spotlight

Before the financial crash, when people were high on eye watering mortgage deals and soaring house prices, reliability and trustworthiness were rarely a priority for consumers.

But since the hangover set in, global giants in the banking world have come to realise that people don’t actually want a ‘fast banker’. What they want are those watchwords re-imagined and reinstated – and that’s just what Royal Bank of Scotland’s Terry Lawson intends to do.

A family man at heart, Lawson is as far removed from the tarnished view many people still hold today about the banking world as it is possible to be, following the global financial crisis investment bankers ‘mastered’ in 2007-08.

Today, Lawson is at the forefront of an evolutionary change gripping RBS’ retail arm, where a new era of customer protection is becoming the cornerstone of its culture.

‘Ultimately, the whole bank is changing, led by Ross McEwan, RBS chief executive, who is absolutely insistent that the only way the bank can be successful is by meeting the needs of its customers and being there when they need us,’ explains Lawson, who was promoted in July to programme director, keeping you safe and secure, RBS. He says the thought of protecting people from fraudsters – who may use their ill-gotten gains to fund organised crime, such as people or drug trafficking – is what gets him out of bed in the mornings. It is this work/life ethic that makes him the perfect man to take up McEwan’s mantle. ‘My overall priority is to provide a good life for my family and to give my three children every opportunity to find their passion and do what they want with their lives. It is a privilege to come to work every day with hundreds of other people in the field of fraud and retailer sharp practices, who are really making a positive difference to the lives of our customers.’

Historically, RBS carried out transactional analysis looking for abnormal patterns of behaviour to combat fraud.

Lawson says the same happens now, but in a much more proactive way, with ‘red flags’ placed against sharp practices.

For example, in 2014, a glut of free trial scams and dodgy payday lender behaviour provoked thousands of calls to RBS’ fraud & chargeback operations team – with the action taken ultimately leading to the proudest moment in Lawson’s 28-year career in banking.

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November 2015

This year, professionally trained community protection advisers were introduced across the RBS and NatWest branch network to add an extra layer of protection for customers. This has already led to millions of pounds worth of customers’ money being safeguarded, through the diligence of front-line staff supported by these experts, who have very strong connections into law enforcement and trading standards offices in their regions.

When the free trials scam increased significantly in the summer of 2014, the fraud and chargeback operations team began receiving hundreds of calls per day from customers who spotted a regular monthly transaction of between £60 and £80 appearing on their account, which they hadn’t authorised. The money was being taken by retailers offering free trials, for body-building or weight-loss products, for

If anyone a empts to make a large cash withdrawal outside of their normal pa ern of behaviour, tellers have someone they can call.

example.

‘If staff have any uncertainty at all, that’s where the community protection adviser steps in, connecting with police or trading standards, or whatever agency might be most appropriate,’ says Lawson.

£60-£80 a month.

‘It’s making a huge difference; we’ve already protected millions of pounds worth of customers’ money, where staff have felt uncomfortable [during a transaction]. When they’ve dug a bit deeper they’ve found that customers are being subjected to fraud.’

Lawson himself has regular contact with Louise Baxter, CTSI’s lead officer for consumer education and head of the National Trading Standards Scams Team, and he says a number of initiatives between RBS and the scams team are starting to ‘bubble up’ to help be er protect customers from sharp practices, dodgy retailer behaviour and fraud.

So watch this space!

Spotlight

KEEPING YOUR MONEY SAFE

Lawson says: ‘Customers were paying £4.95 to cover postage and packaging for a free trial, when hidden in the terms and conditions they were actually signing up to pay ‘Unfortunately, they had agreed to pay this – the way the websites were constructed it was impossible for customers to decipher [what they had signed up to].’

Working closely with payments industry partners they identified almost 1,500 of the worst offending retailers and were able to reduce these types of transactions significantly.

Now, RBS staff are proactively looking for this type of transaction and making contact with their customers direct: ‘Practically 100 per cent of customers said they didn’t know [this money was being taken], and they’re finding it really unusual that a bank has their back in that way. It’s been a really positive experience for our customers.’

RBS also placed a ‘blocker’ on attempted transactions affecting thousands – if not millions – of accounts, so that customers targeted wouldn’t be caused any distress by seeing it appear on their statements.

At about the same time last year, RBS’ fraud and disputes team began receiving around 750 calls per day from some of their most financially distressed customers about unauthorised transactions, which had been implemented almost exclusively by payday lenders – although Lawson is keen to stress that none of these transactions involved the more well-known brands.

Often, these customers had attempted to secure a payday loan – and in some cases had been successful – but not with the organisation raising the transaction against their account.

Lawson’s team discovered that customers thought they were applying for a payday loan online direct with a lender,

November 2015

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TERRY LAWSON POSITION Programme director, keeping you safe and secure, RBS HOME Stirling, Scotland, where he lives with Susan, his wife of 27 years, their youngest child and their Yorkshire Terrier, Bobby HOBBIES Cycling and a spot of golf – time and family commitments permi ing!

Spotlight

QUICK QUOTE ‘Doing the right thing for the customer is doing the right thing for the bank...

I was really thrilled to get the opportunity to drive that ethos across a much broader spectrum’

when in fact they were leaving their particulars – including

regulator, the Financial Conduct Authority (FCA), and

their bank details – with a broker.

Lawson describes its response as ‘outstanding’. By the turn

‘The way the websites were constructed meant the

overnight’ that stopped the practice dead: ‘The lenders

explains Lawson. ‘What the customer wasn’t aware of was

targeted some of the most vulnerable community groups

that some of these brokers would raise a charge simply for

I have ever seen. The regulator was quite clear that this

making an application – and that was what they were seeing

behaviour was totally unacceptable.’ It meant a lender was

on their bank accounts.’

only able to raise a fee if customers had explicitly expressed a

To add insult to injury, their data was then shared with multiple other lenders. In some instances data had been shared with up to 200 other organisations.

Lawson estimates that the sharp practice affected many

willingness for them to do so.

‘I can – hand on heart – say the work we did last year for trial scams and our ability to do something about it – with literally tens of thousands of customers benefiting – is,

millions of customers, but the lenders and/or brokers were

without question, the most satisfying thing I have ever done

not successful in all their attempts to extort funds. ‘It was

in my 28 years.’

hugely upsetting for a large number of customers, who were

Staff are now primed to deal with a customer’s emotional

obviously already financially distressed if they felt they had

wellbeing – not just the inconvenience of having bank cards

to go to those organisations.’

replaced. Lawson explains: ‘We know from experience that

To tackle this problem, RBS staff embarked on a multi-

customers experience loss through money taken from their

stranded plan of action. Again they worked closely with

account without their authority in the same way they do in a

payment industry partners to identify the chief offenders to

burglary.’

reduce these types of transactions.

‘Once you remove the payment processing, the offenders’ ability to do this becomes very limited,’ says

RBS is now consulting with customers to find out exactly what fraud protection means to them.

Lawson adds: ‘These examples are just a microcosm [of

Lawson. ‘We again implemented our own blocking strategy

the change in culture taking place]. Taking that fail-safe has

so customers didn’t see transactions on their accounts if they

really started to change the bank, protecting our customers

were being affected. This didn’t diminish the volume, but it

from this type of behaviour, whether it’s out-and-out

protected them from seeing it. The activity was not illegal but

fraudulent behaviour, sharp practices or dodgy retailers.

was a very, very sharp practice.’

It’s about how we can put in place system practices and

The team brought the issue to the attention of the

40

of the year, the FCA had introduced new regulations ‘almost

customer didn’t realise they were dealing with a broker,’

processes [to help protect people].’

November 2015

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PROFESSIONAL DEVELOPMENT WITH TS REVIEW Members of CTSI and other professional bodies are required to maintain their professional competence throughout their careers.

Continuing Personal Professional Development (CPPD) means the systematic maintenance, improvement and broadening of your knowledge and skills, and is therefore a long-term commitment to enhancing your competence. CPPD is a requirement of CTSI. TS Review is pleased to offer a free CPPD module in each issue. Simply study the module and complete the questionnaire on the final page, following the instructions for its submission.

If you have any questions, please email training@tsi.org.uk

Age of sale restrictions Nicotine inhaling products and proxy purchasing

Nicotine Inhaling Products (NIPs) encompass a wide range of devices, including the now-familiar electronic cigarette. A relatively new phenomenon, the first

CPPD

Words. Jane MacGregor Images. Shu erstock

e-cigarette was patented in 2003 by Chinese pharmacist Hon Lik, who took the product to market in 2004.1 There has been a rapid rise in their use in the UK – from three per cent in 2010 to a current level of 18 per cent.2 The World Health Organization recommends caution in the use of these devices,3 as the safety of these products is yet to be proved. The most common reason for people using e-cigarettes is to reduce the health risks of smoking – by stopping smoking completely or by reducing the amount they smoke. Around 30 per cent of attempts to stop smoking in the past year have involved e-cigarettes, which is higher than the use of any other aid to cessation.

E-cigarettes are currently regulated as consumer products; however, this situation will change from 20 May 2016, when the European Union Tobacco Products Directive (2014/40/EU) 4 – known as the TPD – comes into effect in member states. From this point, e-cigarettes containing up to 20mg/ml of nicotine will be regulated under the TPD, whereas devices containing more than 20mg/ml of nicotine will be categorised as a medicine.

Any e-cigarette manufacturer that wishes to market their product as a harm-reduction or smoking-cessation

November 2015

41

CPPD

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aid must have the device regulated as a medicine by the Medicines and Healthcare Products Regulatory Agency (MHRA).

The Smoking, Drinking and Drug Use among young people in England 5 report (2014) found that – while 88 per cent of 11-15 year-olds were aware of e-cigarettes – just over one-fifth of the respondents in that age bracket had used e-cigarettes, and only one per cent were regular users of the product.

The Nicotine Inhaling Products (Age of Sale and

THE REGULATIONS COVER ALL NICOTINE INHALING DEVICES REGARDLESS OF WHETHER THEY RESEMBLE CONVENTIONAL CIGARETTES

Proxy Purchasing) Regulations 2015 6 came into force on 1 October 2015. These restrict the age of sale of nicotine inhaling products. In common with the restriction placed on tobacco products, the legal age of sale is 18 years.

The following guidance has been prepared by the Department of Health, in conjunction with MHRA and CTSI, to assist trading standards personnel with the interpretation of these regulations.

Guidance: age of sale for nicotine inhaling products The statutory minimum age of sale of 18 for nicotine inhaling products came into effect on 1 October

electrical leads, which are covered by wider consumer protection and safety legislation.

These regulations apply to any sale of nicotine

2015. The Nicotine Inhaling Products (Age of Sale and

inhaling products, with special rules about medicines.

Proxy Purchasing) Regulations 2015 introduce this

These products are currently available in a wide

age restriction and define a nicotine inhaling device as

range of settings, including newsagents, convenience

‘a device which is intended to enable nicotine to be inhaled

stores, pharmacies, discount shops, specialist vaping

through a mouthpiece (regardless of whether the device is

shops, markets, car boot sales, barbers and many other

also intended to enable any other substance to be inhaled

retail outlets.

through a mouthpiece)’. The regulations cover nicotine inhaling devices such as e-cigarettes, certain component

Guidance: medicinal products

parts and e-liquids that contain nicotine.

Nicotine inhaling products that make medicinal or

The regulations do not apply to tobacco, cigarette

therapeutic claims – such as ‘Helps you to quit smoking’

papers or other devices intended for the consumption of

– require authorisation under medicines legislation, for

lit tobacco, for which age restrictions already exist.

which the MHRA is responsible.

The definition encompasses e-cigarette devices – both

From May 2016, nicotine inhaling products, or

disposable and rechargeable ones – certain component

e-liquids that contain more than 20mg/ml and do not

parts, such as pre-filled refill cartridges and refill liquids –

have a marketing authorisation as a licensed medicine

known as ‘e-liquids’ provided they contain nicotine.

from MHRA, will be prohibited by the TPD.

The regulations cover all nicotine inhaling devices

The Age of Sale Regulations provide exemptions for

regardless of how they are powered and whether they

nicotine inhaling products that are licensed as medicines,

resemble conventional cigarettes or not.

so that they can be made available to persons under 18.

Although some devices may not contain nicotine

First, where the product is a medicine or medical

at the point of sale, they would be covered by the

device – and is sold/dispensed by a pharmacist in

regulations if they are intended to enable nicotine to be

accordance with a valid prescription – an e-cigarette

inhaled through a mouthpiece.

could be made available to a person under 18.

The age of sale restrictions do not apply to ancillary

42

components, such as batteries, charging devices and

Second, the regulations exempt the sale of any

November 2015

SPONSORED BY

nicotine inhaling products licenced as non-prescription medicines where the product is indicated for use by under-18s. The product licence, also known as a marketing authorisation, would specify that the product was for the treatment of persons under 18. In such cases, the seller does not have to be a pharmacist, as such medicines can be sold in any type of shop – in the same way, for example, that paracetamol is sold.

At present, a licence has been granted for only two products that would meet the definition of nicotine inhaling products.

Licenced medicines are also subject to separate rules covering advertising, product presentation and other factors relating to sale and supply. Where a licenced medicine was sold or supplied in breach of its product licence, this would be a matter for the MHRA as the appropriate enforcement authority.

Guidance: proxy purchasing The regulations extend the offence of the proxy purchase of tobacco products to cover nicotine products, such as e-cigarette devices and e-liquids. This makes it an offence for an adult to purchase, or attempt to purchase, these products on behalf of a person aged under 18.

A proxy purchase offence would not be committed where a nicotine inhaling product had been prescribed to a child in accordance with a valid prescription, or where it could lawfully be sold to a child as a medicinal product.

November 2015

Disclaimer In offering this advice, CTSI wishes to make it clear that:

• Legislation may change over time and the advice given is based on the information available at the time the guidance was produced.

It is not necessarily comprehensive and is subject to revision in the light of further information

• Only the courts can interpret statutory legislation with any authority

• This advice is not intended to be a definitive guide to – nor substitute for – the relevant law.

Independent legal advice should be sought where appropriate

43

CPPD

SPONSORED BY

The proxy purchase offence could apply to certain licensed e-cigarette products. For example, where a device has been granted a licence by the MHRA as a non-prescription medicine, but is indicated for use by over-18s only, it would be an offence for an adult to purchase this device on behalf of a person aged under 18. It is the adult making the purchase who commits the offence, not the retailer.

This module was wrišen by Jane MacGregor, CTSI lead officer for age-restricted sales, in conjunction with the Medicines and Healthcare Products Regulatory Agency and Department of Health.

References 1 Who Invented e-cigare es? About Money website, inventors.about.com 2 West R, Hajek P, McNeill A, Brown J, Arno D (2015) Electronic cigare es: what we know so far: a report to UK All Party Parliamentary Groups. www.smokinginengland.info/reports 3 World Health Organization: Questions and answers on electronic cigare es (July 2013) www.who.int 4 Tobacco Products Directive (2014/40/EU) available online at ec.europa.eu/health 5 Smoking Drinking and Drug Use among young people in England (2014) www.hscic.gov.uk 6 The Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015, www.legislation.gov.uk

NOVEMBER

MODULE AGE OF SALE RESTRICTIONS Boost your personal and professional development by completing this short questionnaire – worth one hour of CPPD. Answer the questions listed below at www.tradingstandards.uk/cppdtest

1. Do the regulations apply to ba eryoperated devices only?

a licensed medicine from the Medicines and Healthcare Products Regulatory Agency?

2. Does the young person under 18 years who buys a nicotine inhaling product (NIP) commit an offence?

8. Is it illegal to supply a NIP charger device to a young person under the age of 18 years?

3. Are licensed (medicinal) NIPs exempt from the age restriction?

4. Are nicotine inhaling products available from a wide range of business premises?

5. Do the regulations apply to all devices regardless of whether they contain nicotine or not?

6. Can an adult legally purchase a licensed product that has been prescribed for use by a young person under 18 years?

7. Is it true that, from May 2016, the TPD will prohibit nicotine inhaling products or e-liquids that contain more than 20mg/ml, and those that do not have a marketing authorisation as

44

Applicants who complete the module successfully will be given a certificate. The test must be taken before 22 January 2016.

Module 3 answers: 1. Yes – you can enter the premises with consent of the occupier, but you have no power to enter a premises used wholly or mainly as a dwelling without the occupier’s consent or without a warrant 2. No – as you now have reason to suspect a breach of legislation, you can use any of the powers available to you under Schedule 5. You do, however, have to give a notice to the trader se ing out why entry is necessary, and indicating the offence of obstruction 3. No – information obtained remotely from a person cannot be used as evidence against them. However, there is nothing to stop you then going to the head office and re-acquiring the documents, which can then be used as evidence 4. Yes – there is no restriction in relation to the use of information obtained from third parties 5. No – you can enter the shop in the same way as any consumer can, and can do whatever a consumer can do, without giving notice. If you then identify any issues you wish to raise with the occupier, you should give notice at that time 6. Yes – provided the notice was sent to the last known address by first-class post, and you have waited at least two working days, it can be assumed to have been delivered, and you can enter. It could be an offence of obstruction if the trader refuses entry 7. No – there is no requirement for the owner to be present at the time of the visit, but you may wish to make an appointment if you wish to discuss issues of compliance 8. No – there are two reasons why notice is not required. First, it is likely that giving notice would defeat the purpose of the entry. Second, if the vodka is known to contain methanol, it could be argued that there is an imminent risk to public health or safety

November 2015

SPONSORED BY

Words. Eloise Emanuel Images. Shu erstock

DIGITAL

Online sales can be tricky, but updated regulations and the Consumer Rights Act have

From the Bar

improved consumer confidence

The Consumer Contracts (Information, Cancellation & Additional Charges) Regulations 2013 came into force in England and Wales on 3 June 2014, replacing the Consumer Protection (Distance Selling) Regulations 2000, and the Doorstep Selling Regulations 2008.

These regulations implemented the EU’s Consumer Protection Directive 2011/83, standardising European consumer law requirements previously beset by out-ofdate and inconsistent legislation resulting from years of piecemeal reform. The new regulations seek to provide greater confidence in e-commerce by clarifying the legitimate expectations of consumers and requirements for businesses.

They further aim to achieve this by requiring businesses to provide a wealth of additional prior information to the consumer, such as: • Length of consumer commitment involved • Information on functionality and interoperability of digital content • Seller information – location, contact details, and so on • Details of cancellation rights and a standard cancellation form • Confirmation of delivery timeframe – not exceeding the 30-day statutory limit • Delivery of all key information in a durable form, or a form appropriate to the means of communication – for example: verbally if made over the phone

46

November 2015

Interpretation and enforceability Since the regulations have come into force, the major issue has been one of interpretation as to enforceability.

The regulations make abundantly clear the increased level of prior information required. However, the penalty

From the Bar

DANGERS for non-provision of that information and the stage at which it may still be legitimately supplied following that initial failure remains unclear.

As the title of the legislation suggests, it is primarily concerned with prior information, cancellation and additional charges – not the core contract price of online transactions. Jenny Willott, the previous under-secretary of state for business, innovation and skills, offered a possible steer towards its true interpretation during the passage of the Consumer Rights Bill – as it was then known – through parliamentary debate in March 2014, stating: ‘We also agreed that in some cases – which we hope will be the minority – termination of the contract will unfortunately be the most appropriate remedy, so we make it clear in the Bill that it is still open to the consumer to terminate the contract, which they have a right to do under common law. Under common law, this right is reserved for serious breaches, or for breaches of the most important terms. It is right that termination of a contract should be reserved for the most serious cases, rather than being an easy fall-back.’ 1

47

From the Bar

SINCE THE REGULATIONS HAVE COME INTO FORCE, THE MAJOR ISSUE HAS BEEN ONE OF INTERPRETATION AS TO ENFORCEABILITY

In light of the above, given the excess of additional information now mandated at the pre-contract stage, it is hard to envisage a failure to provide any minor aspect of information resulting in an immediate right of termination. While it is clear the consumer position has been strengthened through provisions such as the general extension of the cancellation period from seven to 14 days, to read the regulations as providing wideranging powers of termination overstates the strength of the consumer position.

If this were to be the case – that minor contractual breaches render a contract unenforceable – the courts would rapidly become flooded with a range of technical challenges. Nonetheless, by leaving these issues open as arguable either way, the legislation has resulted in increased expense on compliance and review procedures for traders operating at a distance. While all businesses should strive to provide as much information as possible, the uncertainty as to what constitutes a terminal error of information provision

able to shop with confidence. These changes will also

results in businesses providing information in excess,

simplify the law for businesses so they can spend less

adopting a one-size-fits-all approach to distance sales to

time worrying about unclear and unwieldy regulations.’3

blanket out any potential liability claim arising.

On the other hand – given the continuous developing world of e-commerce – this extra burden may be a necessity as it is next to impossible to envisage every scenario the regulations will cover; therefore putting the consumer’s interests to the fore in this way should help to promote long-term confidence among consumers.

The Consumer Rights Act: October 2015 In addition to the new regulations, the Consumer Rights

48

The legislation makes clear, for the first time, consumers’ legal rights for digital content, with requirements such as: • Product must be fit for purpose • Product must be as described by the trader • Product must be of satisfactory quality • Any pre-contractual information must meet the standards of the 2013 regulations • A right of repair or replacement of faulty digital content

Act came into force on 1 October 2015, and provides

The first issue to address with these requirements centres

consumers with clear rights regarding digital content.

on the very nature of digital content, it often being

A re-statement of the position had long been required

intangible and provided without a hard copy CD, for

given recent increases in spending on digital content,

instance. There are clear evidential difficulties for the

with more than £2.8bn spent on downloaded music, video

average consumer in demonstrating they have, or have

and games in 2014 – up 18 per cent from the previous

not, opened, used, installed or received digital content,

year.2 Business minister Nick Boles stated: ‘UK consumers

whether it is a download or CD. The legislation accounts

spend £90bn a month, and it is important that they are

for this by expressly removing the right of cancellation for

November 2015

digital content, such as the fact that most digital content is compositely created using third party ‘no warranty’ input.

The legislation has, therefore, roundly increased digital content providers’ liability by making them assume third

From the Bar

The overarching concept of satisfactory quality of digital downloads also overlooks intrinsic elements of

party risk for all constituent elements that, with larger products, invariably becomes a mammoth undertaking.

This in turn may affect upgrades and updates – another common feature of digital content provision – although the statute remains mute on updates and upgrades.

For the requirement, digital content remains as initially described. Given the extension of liability in other areas, the lack of clarity may make digital content providers less willing to provide updates and upgrades for fear of exposing themselves to further liability.

A balancing act those who download software within the first 14 days of

Ultimately, the combined effect of the act and the

purchase. The loss of the cancellation right will, however,

regulations has been an increased litigation risk for

only be upheld when the consumer has clearly been

businesses – prompting a thorough review of online

notified to that effect during download. What constitutes

terms, conditions and sale processes for all online

clear notification and the rules application to partial or

merchants. A particular risk that businesses now face is

interrupted downloads, however, remains untested.

the possibility of consumer claims for damages arising

Digital content is also rarely sold outright – what is

in conjunction with regulatory action – potentially

usually sold is a license or contractual right to use the

representing a significant cost. While the act and

content as provided – not a carte blanche sale for use as

regulations may be initially read as a strengthening

desired. Instead, the issue with requiring digital content

of the consumer position, it is only when their

to be fit for purpose comes down to the question of

interpretations are tested in due course that the true

whose intended purpose is given legal consequence.

balance between consumer rights and business interests

Where, as is standard, online traders sell their digital

will be revealed.

content subject to standard terms and conditions, is the consumer’s expectation properly limited to these terms and conditions? It has also become increasingly common for digital content to be re-programmed and used outside the parameters of its original form. As of yet, it is unclear whether user-developed and open source content,

References 1. www.publications.parliament.uk/pa/cm201314/cmpublic/ consumer/140304/pm/140304s01.htm 2. www.gov.uk/government/news/new-rights-for-consumerswhen-buying-digital-content 3. www.gov.uk/government/news/new-rights-for-consumerswhen-buying-digital-content

whether intended to be or not, will still be considered within the scope of fit for purpose.

November 2015

Eloise Emanuel is a barrister at QEB Hollis Whiteman.

49

1

Name the National Consumer Week campaign that scooped Partnership Engagement Initiative of the Year at the UK Public Sector Communications Awards 2015

2 Which prominent figure said

Downtime

‘We’re still standing’ on the first day of CTSI Conference this summer?

Win £25!

Test your knowledge on the contents of the last

three issues of TS Today and you could be in with a chance of winning £25 worth of M&S vouchers

3

Who was introduced as the new editor-in-chief of TS Today and TS Review in September 2015?

4

Which infographic did the following symbols appear on?

5 Name the panellists who took part in CTSI’s

second plenary session at CTSI Conference in July To submit your answers, email tsreview@tsi.org.uk Please remember to include your full name and a postal address to be in with a chance of winning. Answers relate to the Aug-Oct 2015 issues of TS Today, which can be found via www.tradingstandards.uk/tstoday Last issue’s winner was Stewart Adams of Spixworth, Norwich, who correctly answered all five questions to win £25 in Homebase vouchers. Answers were as follows: 1) Stephanie Hudson 2) Lynn Faulds Wood was invited by Jo Swinson to head the independent review into product recalls 3) ‘Video blog’ 4) The Consumer Protection from Unfair Trading Regulations 2008 5) The shady online diet supplement industry

50

Picture credits: Cover and page 18: Positive thinker / igorrita / Vlada Young / Shu erstock. Page 6: Dan Kitwood / Ge y Images. Page 7: file404 / Shu erstock. Page 10: Ilya Zonov / Marochkina Anastasiia / Tashsat / Igorij / Shu erstock. Page 15: Vanatchanan / Shu erstock. Page 25: wrangler / Shu estock. Page 26: wavebreakmedia / Shu erstock.

Page 28: Diego Cervo / Shu erstock. Page 32: urbanbuzz / Shu erstock. Page 34 and 35: CaseyMartin / Shu erstock. Page 42: Crystal Eye Studio / Shu erstock. Page 46: Sabelskaya / Shu erstock. Page 48: vasabii / Shu erstock. Page 50: Ginta Gasjune / TheBlackRhino / Bloomua / Shu erstock.

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Consumer Affairs & Trading Standards Conference & Exhibition 2016 #CTSICONF

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CTSI is looking forward to welcoming you to our annual Conference in Telford The International Centre, Telford is a stand-out venue located in a destination made to meet, socialise, explore and stay.

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The leading consumer affairs & trading standards event in Europe The International Centre, Telford Monday 20 June - Thursday 23 June 2016