National Trading Standards – Online sales of age-restricted products

This guidance is for England & Wales

Selling age-restricted products via the internet presents particular issues and retailers must have effective systems in place for preventing sales to prospective customers who are underage.

This guide applies to all products that have age restrictions on sales, such as alcohol, tobacco, spray paints, fireworks, and video recordings and games.

Duty of retailers

It is the responsibility of retailers to ensure they do not sell age-restricted products online to people who are under the minimum legal age. This means setting up effective systems capable of verifying the age of potential purchasers to ensure they are above the minimum legal age to purchase a product. When making an assessment of such systems account should be taken of legal requirements to take all reasonable precautions and to exercise all due diligence to avoid committing an offence. These legal requirements are a retailer’s defence in consumer protection legislation.

Such systems should be regularly monitored and updated as necessary, to identify and rectify any problems or weaknesses in the system or to keep pace with advances in available technology.

There is no definitive answer as to what constitutes taking all reasonable precautions or exercising all due diligence. However, past court case decisions in relation to other areas of consumer protection have established that a retailer’s defence is more likely to fail if positive steps or precautions are not taken, resulting in a conviction.

Risk analysis, including the investigation of the options available to overcome risks, is required to identify and investigate what precautions and steps could be taken.

Checks unlikely to satisfy ‘due diligence’

Retailers should take positive steps to verify the age of the purchaser when selling age-restricted products. The following are examples that are unlikely to be enough to satisfy the requirements of taking all reasonable precautions and exercising all due diligence:

  • relying on the purchaser confirming they are over the minimum age
  • asking the purchaser simply to provide a date of birth
  • using tick boxes to ask purchasers to confirm they are over the minimum age
  • using a general disclaimer such as: ‘Anyone ordering this product from our website will be deemed to be at least 18’
  • using an ‘accept’ statement for the purchaser to confirm that they have read the terms and conditions and are over the minimum age
  • using e-payment services such as PayPal, Nochex or Worldpay. These services may require a customer to be over 18, but they may not verify a user’s age
  • only accepting payment by credit card. Credit cards are not available to under 18s but certain debit and prepaid cards are. Your payment systems are unlikely to be able to differentiate between the different types of card so it is essential that you have additional age verification in place

Young people will seek to challenge conventions and test boundaries. In the case of online sales, young people could potentially evade the stringent proof-of-age checks that are required on the high street unless retailers make positive checks.

Age verification checks

The following is a guide to possible steps and precautions that retailers could adopt to assist with age verification. However, it should be noted that these may not be suitable for some situations and retailers will need to assess what steps are suitable and appropriate to their individual circumstances. Retailers may be able to develop other methods of age verification.

Age verification concepts in a fast moving digital world are challenging in terms of effectiveness. No system is failsafe and any service that relies on remote verification has the potential for errors.

Many websites now require purchasers to register details or to set up accounts for future purchases, which means that age verification checks may only be required for the initial set-up of accounts or on the first purchase from the website.

Age verification on delivery

Retailers could use age verification checks at the point of delivery by ensuring that delivery drivers request valid proof of age to confirm that the purchaser is over the minimum age to buy the product in question. It should be noted that third-party couriers may not accept responsibility for age verification.

Online age verification checks

Online age verification software is available that makes use of various sources of information in order to verify both age and identity during the ordering process. These checks include using the electoral register and/or credit reference agencies. There are also businesses that offer online access to electoral register information, which could be used to verify a purchaser’s age.

Follow-up offline checks

In some circumstances, it may not be possible to verify a potential purchaser’s age to conclude an online order. It is there suggested that further checks could be carried out, such as requiring the customer to provide a valid / acceptable proof of age, which can then be appropriately checked.

Collect in-store

For some retailers that also have a high street presence, purchasers could view and reserve products online and then collect in-store, where age verification could be carried out by members of staff as with a normal face-to-face transaction.

Further information

It is the responsibility of the retailer to ensure that products are only sold to purchasers old enough to buy them. If there is any doubt the transaction should not proceed.

The above guidance is applicable to all products that are subject to age-restricted sales. These include alcohol, tobacco, spray paints, fireworks, and video recordings and games.

A PAS (publically available specification) has been published, which was developed by the Digital Policy Alliance and BSI (British Standards Institution). PAS 1296: Online age checking. Provision and use of online age check services. Code of Practice is designed to help traders, particularly those that conduct age checks or provide age check services, to comply with the law.

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.

Key legislation

Children and Young Persons Act 1933

Video Recordings Act 1984

Criminal Justice Act 1988

Children and Young Persons (Protection From Tobacco) Act 1991

National Lottery etc Act 1993

National Lottery Regulations 1994

Offensive Weapons Act 1996

Cigarette Lighter Refill (Safety) Regulations 1999

Anti-social Behaviour Act 2003

Licensing Act 2003

Fireworks Regulations 2004

Gambling Act 2005

Violent Crime Reduction Act 2006

Pyrotechnic Articles (Safety) Regulations 2015

PLEASE NOTE

The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.

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National Trading Standards – Electrical Products

This guidance is for England, Scotland & Wales

Electrical equipment designed for use between 50-1,000 volts AC or 75-1,500 volts DC must be safe, constructed in accordance with principles constituting good engineering practice and conform to specific regulatory safety objectives.

If the electrical equipment complies with a harmonised European standard, it is automatically taken to be safe. There are specific requirements for the manufacturer of the product, including affixing the CE mark, drawing up and holding an EC declaration of conformity, and keeping technical information for inspection purposes.

Electrical equipment is required to comply with the Electrical Equipment (Safety) Regulations 2016. The Regulations therefore apply to electrical equipment that is designed to be connected to a domestic mains electricity supply, as well as to some industrial equipment.

Components of electrical equipment are also covered if they are to be supplied as separate items.

Second-hand items (including items for hire and equipment supplied as part of a furnished accommodation) are required to satisfy the principal elements of the safety objectives only. They are not required to be CE marked etc.

Principal safety objectives

Electrical equipment must:

  • be constructed in such a way to ensure that it can be used safely and for the purpose that it was made
  • be in conformity with the safety objectives contained in Part 2 of and Schedules 1 and 2 to the Regulations, including:
    – being marked in accordance with the requirements set out below so that it can be easily traced
    – designed so that the equipment, including its component parts, can be safely and properly assembled and connected
    – instructions and information required for the equipment to be used safely must be marked on the equipment or in an accompanying notice
    – operate at a safe temperature with no dangerous arcing or radiation
    – have adequate insulation for foreseeable conditions
    – have the right technical information available, demonstrating compliance with CE marking requirements and a ‘declaration of conformity’

Satisfying the principal safety objectives

Manufacturers must have adequate internal production control (quality assurance) as a means of satisfying conformity, achieved through taking responsibility for the technical documentation and monitoring manufacturing processes. Either the manufacturer or (by written mandate) the authorised representatives should draw up a declaration of conformity in accordance with Schedule 8 to the Regulations and apply the CE mark (as below).

If the electrical equipment complies with a harmonised European standard, there is a presumption that it meets the principal safety objectives. If there is no relevant harmonised European standard, compliance with international standards will be sufficient. If there are no relevant international standards, compliance with a national standard will be sufficient provided that standard includes everything in the principal safety objectives.

Labelling & records

A manufacturer or their authorised representative within the European Economic Area (EEA) must do the following.

Ensure that the electrical equipment bears a type, batch or serial number or other element allowing its identification.

Indicate on the electrical equipment the manufacturer’s name, registered trade name or registered trade mark and the postal address at which they can be contacted. If it is not possible to indicate these on the equipment itself, then it may be indicated on the product packaging or accompanying documents. These have to be legible and easily understood by the end users and market surveillance authorities. In the UK it must be in English.

Affix a CE mark to the equipment, the packaging, instruction sheet or guarantee certificate. The CE mark is a declaration that the equipment complies with the Regulations.

CE mark

Draw up and hold an ‘EC declaration of conformity’, which should contain:

  • product model, type, batch or serial number(s) to which the declaration of conformity applies (for traceability purposes)
  • the name and address of the manufacturer or their authorised representative
  • a description of the electrical equipment (may include a colour image where necessary for the identification of the electrical equipment)
  • a reference to the harmonised standards used to assess compliance (if no harmonised standard, then a reference to other specifications)
  • identification of the person who will enter into commitments on behalf of the manufacturer or authorised representative (if appropriate)
  • the place and date of issue

Compile and hold technical documentation, which should contain:

  • a general description of the electrical equipment
  • the conceptual design, manufacturing drawings, details of components, etc along with information to help interpretation of these
  • a list of the standards with which the electrical equipment complies; or, if standards were not used, a description of what has been done to ensure compliance with the general safety requirement
  • results and reports of tests, examinations, calculations, etc

Obligations of importers & distributors

Importers must not place any electrical equipment on the market unless they have assurances that it complies with the principal safety objectives and ensure that the manufacturers have met all their obligations in relation to conformity assessment procedures, technical documentation, CE marking and labelling requirements. This must be made available to an enforcing authority on request.

Importers must also indicate on the electrical equipment their name or registered trade mark and a postal address at which they can be contacted. If it is not possible to put all the information on the equipment itself, importers can put their full name or trademark and details on the packaging instead.

Distributors have a responsibility to ensure that instructions and safety information accompany the electrical equipment before placing it on the market. They must also check with the importer that the manufacturer of the electrical equipment has met their obligations with regard to the labelling requirements. Distributors must check that the electrical equipment bears a label that correctly identifies the importer.

Obligations of manufacturers & importers

Manufacturers and importers have additional obligations; they must:

  • carry out sample testing of electrical equipment made available on the market
  • investigate and keep a register of complaints, of non-conforming electrical equipment and electrical equipment recalls
  • keep distributors informed of any such monitoring

Who should keep the documentation?

The declaration of conformity and the technical documentation must be kept and be available for inspection by enforcement bodies (including trading standards) by:

  1. the manufacturer, if they are in the EEA
  2. their authorised representative, if they are outside the EEA
  3. if neither of the above, the importer into the EEA

These must be kept for a period of 10 years beginning on the day on which the electrical equipment is placed on the market.

Safe connection for domestic electrical equipment

If the electrical equipment is a plug-in device (such as a charger) intended to be connected, without the use of a mains lead or plug, directly to the United Kingdom public electricity supply via a socket outlet conforming to BS 1363: A plugs, socket-outlets, adaptors and connection units, the economic operator must ensure that the plug-in device is compatible with socket outlets conforming to BS 1363.

Where the electrical equipment has a flexible lead and plug assembly, such as a vacuum cleaner, and is intended to be connected to the United Kingdom public electricity supply by means of a socket outlet conforming to BS 1363, the economic operator must ensure that that plug is a correctly fitted standard plug fitted with a BS 1362 fuse, or is a correctly fitted non-UK plug conforming to the safety provisions of IEC 884-1 and correctly fitted with a compatible conversion plug.

Other CE-marking regulations that may apply

  • Medical Devices Regulations 2002 (further information is available from the Medicines and Healthcare products Regulatory Agency, telephone 020 3080 6000)
  • Supply of Machinery (Safety) Regulations 2008
  • Toys (Safety) Regulations 2011 (also contain a general safety requirement)
  • Electromagnetic Compatibility Regulations 2016 (contain provisions prohibiting electromagnetic emissions from electrical equipment interfering with the operation of other equipment)
  • Radio Equipment Regulations 2017

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.

Key legislation

Medical Devices Regulations 2002

Supply of Machinery (Safety) Regulations 2008

Toys (Safety) Regulations 2011

Electrical Equipment (Safety) Regulations 2016

Electromagnetic Compatibility Regulations 2016

Radio Equipment Regulations 2017

PLEASE NOTE

The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.

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National Trading Standards – Tobacco & nicotine inhaling products

This guidance is for England

Certain products cannot be sold to persons below a legal minimum age; for tobacco and nicotine inhaling products this legal minimum age is 18.

A packet of cigarettes must contain a minimum of 20 cigarettes and must only be sold in its original packaging. A notice must be displayed stating ‘It is illegal to sell tobacco products to anyone under the age of 18’.

Tobacco products must not be on display in-store and there are also restrictions on how prices and price lists are displayed.

Young people should always be asked for proof of their age.

What is meant by tobacco, tobacco products & nicotine inhaling products?

‘Tobacco’ is defined as including cigarettes, any product containing tobacco for oral or nasal use (for example, snuff) and smoking mixtures used as a substitute for tobacco (for example, herbal cigarettes). ‘Cigarettes’ include cut tobacco rolled up in paper, tobacco leaf and other material in a form that is capable of being immediately used for smoking.

A ‘tobacco product’ is defined as “a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed”.

A ‘nicotine inhaling product’ means a nicotine inhaling device (used to inhale nicotine through a mouth piece), nicotine cartridge (contains nicotine and forms part of a nicotine inhaling device) or nicotine refill substance (generally known as e-liquid). Nicotine inhaling devices are commonly referred to as ‘e-cigarettes’ and the law covers both disposable and rechargeable types.

Age restriction on the sale of tobacco products

The law states that it is an offence for any person to sell any tobacco products (including cigarette papers) to a person under 18, whether or not it was for their own use. This is a strict liability offence, which means the owner of the business can be held responsible as well as the member of staff who made the sale. If you are charged with this offence, you have the defence that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. This is commonly known as the ‘due diligence’ defence. The ‘Keeping within the law’ section of this guide includes steps that can be taken to provide a ‘due diligence’ defence.

You must display a notice that states:

IT IS ILLEGAL TO SELL 
TOBACCO PRODUCTS 
TO ANYONE UNDER
THE AGE OF 18

The notice must be displayed in a prominent position and be easily visible at the point of sale. The notice must be no less than 297 mm x 420 mm (A3) and the characters must be no less than 36 mm in height. Your local trading standards service or your tobacco supplier may be able to provide a notice for you to use. It is an offence if you do not have the required notice on display, although the ‘due diligence’ defence is available to you.

Age restriction on the sale of nicotine inhaling products

A person who sells a nicotine inhaling product to someone under 18 commits an offence. This is a strict liability offence; the owner of the business can be held responsible as well as the member of staff who made the sale.

There is an exception for nicotine inhaling products that are licensed as medicines or medical devices. This exemption only applies to the extent to which the product is authorised.

If you sell e-cigarettes and associated devices you might want to display a poster advising customers that you will not sell to under-18s:

If I sell e-cigarettes or
nicotine refills to
people under 18 …
TRADING STANDARDS
WILL PROSECUTE ME

Note: unlike the tobacco poster, this is NOT a legal requirement and is simply suggested wording.

Age of the person making the sale

If you employ children in your business, it is not illegal for them to sell tobacco products, provided of course that the customer is not under 18. However, leaving unsupervised children selling tobacco is not recommended as they may find it difficult to refuse customers in their own age group.

Persistent sales to under-18s

If you are convicted of selling tobacco or nicotine inhaling products to persons under 18, and at least two other offences occurred in the preceding two years relating to the same premises, trading standards can make an application to a Magistrates’ Court for a restricted premises order and/or a restricted sales order.

A restricted premises order prohibits the sale from the premises of any tobacco, cigarette papers or nicotine inhaling products to any person, by you or any of your staff for a period of up to one year. You are entitled to make representations to the court as to why they should not grant the order.

A restricted sales order prohibits a specified person who has been convicted of a tobacco or nicotine offence from selling any tobacco, cigarette papers or nicotine inhaling products to any person and from having any management function related to the sale of tobacco, cigarette papers or nicotine inhaling products for a period of up to one year.

Offences are committed if a person sells tobacco, cigarette papers or nicotine inhaling products when a restricted premises order is in place or if a person fails to comply with a restricted sales order.

Proxy purchase of tobacco & nicotine inhaling products

An adult who buys or attempts to buy tobacco, cigarette papers or nicotine inhaling products on behalf of someone under 18 commits an offence. This is called ‘proxy purchasing’.

It is the buyer and not the trader who commits an offence under these circumstances. However, be aware of young people loitering outside your premises; they may ask adult customers to buy tobacco, cigarette papers or nicotine inhaling products for them. You may wish to refuse such sales.

Is it legal to sell single cigarettes?

No. A packet of cigarettes must contain a minimum of 20 cigarettes. It is an offence to sell cigarettes to any person other than in their original package. This means you must not split a pack and sell in lesser quantities.

Can tobacco be sold from vending machines?

No. Under the Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010, the sale of tobacco from an automatic vending machine is prohibited. If a sale takes place, the person who controls, or is concerned with the management of the premises where the automatic vending machine is located, commits the offence.

Any machines still on the premises can only be used for storage where the public do not have access to them (such as behind the bar) and must not display any advertising material.

Display & price marking of tobacco products

Under the Tobacco Advertising and Promotion (Display) (England) Regulations 2010, you are required to cover your display of tobacco products. It is an offence to display tobacco products unless a specific request to purchase tobacco has been made to you by a person aged 18 or over. It is NOT an offence to display tobacco-related accessories such as cigarette papers.

If you are charged with an offence where a requested display was to a person under 18, you have the defence that you believed the person was 18 or over and you had taken all reasonable steps to establish their age or from their appearance no-one could reasonably have suspected that the person was under 18. Taking ‘all reasonable steps’ means asking the person for evidence of their age and the evidence would convince a reasonable person. If you are charged with an offence of causing the display of a tobacco product, you have the defence available that you exercised all due diligence to avoid committing the offence.

There are also strict requirements relating to the manner in which tobacco products are price-marked, as set out in the Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010; there are only three forms of lists and labels that are allowed (see paragraphs 49-62 of the detailed guidance linked to below).

There are specific rules for bulk and specialist tobacconists (see paragraphs 38-39 and 60-62 of the detailed guidance).

Cigarette lighter refills

Under the Cigarette Lighter Refill (Safety) Regulations 1999 it is an offence to supply any cigarette lighter refill canisters containing butane to anyone under 18. This is because of the potential for abuse by ‘sniffing’ the gas, which can be extremely dangerous.

Matches & lighters

It is not illegal to sell matches or lighters to children. However, it is recommended that you do not sell these items to children, who are unlikely to have a legitimate use for them.

Defences

If you are charged with any of the offences detailed above, you have the defence that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. For age-restricted products such as tobacco this generally means that you believed the person was aged 18 or over and you had taken all reasonable steps to establish their age or that from their appearance no-one could reasonably have suspected that the person was under 18. Taking ‘all reasonable steps’ means asking the person for evidence of their age and that the evidence would convince a reasonable person.

Keeping within the law

In order to keep within the law and therefore satisfy the legal defences, you should introduce an age verification policy and have effective systems to prevent sales and display to under-18s. These systems should be regularly monitored and updated as necessary to identify and put right any problems or weaknesses, and to keep pace with any advances in technology.

Key best practice features of an effective system include:

Age verification checks

Always ask young people to produce proof of their age. The Chartered Trading Standards Institute, the Home Office and the National Police Chiefs’ Council support the UK’s national Proof of Age Standards Scheme (PASS), which includes a number of card issuers. You can be confident that a card issued under the scheme and bearing the PASS hologram is an acceptable proof of age.

A passport or UK photocard driving licence is also acceptable but make sure that the card matches the person using it and the date of birth shows they are 18 or over. Military identification cards can be used as proof of age but, as with other forms of identification, make sure that the photo matches the person presenting the card and check the date of birth. Be aware that military identification cards can be held by 16 and 17-year-old service people.

Some young people may present false identification cards so it is advisable to also check the look and feel of a card. For example, the PASS hologram should be an integral part of a PASS card and not an add-on.

If the person cannot prove they are 18 or over, or if you are in any doubt, then the sale should be refused.

Please see the Home Office False ID Guidance for more information.

Operate a Challenge 21 or Challenge 25 policy

This means that if the person appears to be under 21 or 25, they will be asked to verify that they are 18 or over by showing valid proof of age.

Staff training

Make sure your staff are properly trained. They should know which products are age restricted, what the age restriction is and the action they must take if they believe a person under 18 is attempting to buy. It is important that you can prove your staff have understood what is required of them under the legislation. This can be done by keeping a record of the training and asking the member of staff to sign to say that they have understood it. These records should then be checked and signed on a regular basis by management or the owner.

Maintain a refusals log

All refusals of tobacco and tobacco products should be recorded (date, time, incident, description of potential buyer). Maintaining a refusals log will help to demonstrate that you actively refuse sales and have an effective system in place. Logs should be checked by the manager / owner to ensure that all members of staff are using them.

Some tills have a refusals system built in. If using a till-based system, you should ensure that refusals can be retrieved at a later date. You should also be aware that some refusals are made before a product is scanned.

Till prompts

If you possess an EPoS system then it may be possible to use it to remind staff of age restrictions via a prompt. Alternatively, stickers can be used over certain product barcodes.

You should note that till prompts will not help you prevent offences under the Tobacco Advertising and Promotion (Display) (England) Regulations 2010 as the scan and prompt takes place after the display has been made.

Signage

You must display the legally required tobacco notice (see ‘Age restriction on the sale of tobacco products’ above). This should deter potential purchasers and act as a reminder to staff.

Closed circuit television (CCTV)

A CCTV system may act as a deterrent and reduce the number of incidents of underage sales.

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.

Key legislation

Children and Young Persons Act 1933

Children and Young Persons (Protection from Tobacco) Act 1991

Cigarette Lighter Refill (Safety) Regulations 1999

Tobacco Advertising and Promotion Act 2002

Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010

Tobacco Advertising and Promotion (Display) (England) Regulations 2010

Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010

Children and Families Act 2014

Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015

Standardised Packaging of Tobacco Products Regulations 2015

PLEASE NOTE

The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.

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National Trading Standards – General Product Safety: Distributors

This guidance is for England, Scotland & Wales

Consumer products must be ‘safe’. Safety can be assessed by the application of standards; if the product complies with a harmonised European standard, it is automatically taken to be safe. This is known as a presumption of conformity.

The General Product Safety Regulations 2005 (GPSR) provide the main basis for ensuring the safety of consumer goods by imposing certain controls. These ensure that all products intended for or likely to be used by consumers under normal or reasonably foreseeable conditions are safe.

As a retailer or wholesaler of consumer goods whose actions do not affect the safety of the goods (this is termed a ‘distributor’ under the Regulations), you will have certain obligations. These obligations also apply to businesses that hire out or supply second-hand goods or supply goods as part of a service.

Product safety

Where a product is already subject to other existing regulations (for example, toys) then those regulations will apply to that product; the GPSR do not apply to the safety of a product where there are specific provisions of European Union (EU) law governing all aspects of its safety. As such, they operate as a kind of ‘mop-up’ set of regulations.

However, the GPSR will apply where they go further than the existing regulations in terms of the specific aspects of safety covered and the extent of the obligations on distributors. The GPSR apply to all products intended for or likely to be used by consumers (even if not intended for them) that are supplied or made available; the test would be whether a consumer can purchase the product without challenge. This includes products supplied or made available to consumers for their own use in the course of a service – for example, gym equipment for use in a gym, high chairs provided for use by diners in a restaurant and trolleys for use by shoppers.

Unlike sector-specific laws, the GPSR do not permit CE marking but do require that distributors only supply safe products.

The following types of consumer goods would fall within the GPSR

  • children’s articles such as cots, prams, high chairs, bunk beds
  • bicycles
  • household goods such as crockery, cutlery, cooking utensils
  • DIY tools
  • furniture and soft furnishings
  • clothing
  • candles and other ornaments
  • hobby and art materials

If there are aspects of safety under GPSR that are not covered by the products’ own sector-specific regulations – such as electrical equipment – then the GPSR aspects will also apply.

The Regulations also cover products that were originally designed and intended for professional use but subsequently ‘migrate’ on to the consumer market (such as certain power tools). Where consumers can acquire professional products, they must be treated as ‘consumer goods’.

As a distributor if you supply a ‘professional use only’ product to a consumer you will be responsible for its safety and if the product could never be safe for use by consumers you should take such steps as are reasonable and necessary to ensure the marketing and supply of the product is very strictly controlled.

Distributor obligations

The main obligation on a distributor is to supply a safe product.

In particular you must act with due care to help ensure only safe products are supplied and must not supply products that, as a professional, you know (or should have presumed on the basis of information in your possession) to be dangerous. For example, if a product has been subject to a recall you must not supply any you may still have in stock.

As a distributor you must also provide consumers with relevant information to enable them to:

  • assess any risk posed by the product throughout the period of its use (where such risks are not immediately obvious)
  • take precautions against those risks

This means passing on all the warnings and instructions that accompany the product.

A further obligation on distributors is to be able to show traceability of the products you supply. In practice the documentation that is required to support Inland Revenue and VAT requirements should be sufficient, as long as they show from whom the goods were purchased and, if not for retail, to whom they were sold. Such records have to be kept for a minimum of six years, which should cover your GPSR obligations.

Where you discover (perhaps as a result of a consumer complaint) that a product you have supplied poses risks to the consumer and is unsafe you must immediately notify your supplier of the issue. In some instances – for example, where it is not easy to contact your supplier – you must then inform your local trading standards service.

You must cooperate with the enforcement authorities at their request. This includes the provision of information relating to the product, the nature of the risk, the product’s supply and marketing, and also in taking appropriate action to remove the risk from consumers.

It is an offence under the GPSR not to fulfil these obligations.

Enforcement action by the authorities

Where distributors have not fulfilled their obligations under these Regulations, enforcement authorities have access to a range of measures that can be employed in removing risk to consumer safety. These are known as safety notices. They are only used when voluntary actions have not removed the risk.

All parties concerned must, whenever feasible, be given an opportunity to submit their views before the adoption of a measure.

The measure chosen will be proportionate to the seriousness of the risk:

‘Suspension notices’. Where there may have been a breach of the Regulations, these notices temporarily ban the placing on the market or the supply of a product while tests are undertaken and the results are awaited.

‘Requirement to mark’ / ‘requirement to warn’. These powers allow an enforcement authority to order the marking of a product with suitable warnings where it could pose risks in certain conditions, or require that specific warnings be given to certain persons considered to be at particular risk from a product – for example, young children, the elderly, etc.

‘Withdrawal notices’. Enforcement authorities can issue a withdrawal notice to permanently prevent a person from further supplying a product that is believed to be dangerous where it is already on the market (if the voluntary action is insufficient or unsatisfactory).

Producer obligations

If you affect the safety of the goods by any action – such as removing the goods from their packaging, assembling products, repairing products or not passing on instructions and warnings – then you become the ‘producer’ of the goods. In this case you will have to comply with the producer obligations under the GPSR.

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.

Key legislation

General Product Safety Regulations 2005

PLEASE NOTE

The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.

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Trading Standards and Consumer Protection Legislation – Herbal Medicine

This guidance is for England & Wales

Many traditional herbal products (such as Chinese herbal products) are popular with consumers who are looking for products with health benefits. Such products are often on the borderline between regulated categories of goods such as medicines, foods and cosmetics. As different legal requirements apply to these different product types it is important that you are clear about the categories your products fall into. The legal requirements governing these products are enforced mainly by trading standards services and by the Medicines and Healthcare products Regulatory Agency (MHRA).

There are specific requirements for herbal remedies, which are classed as ‘medicines’ and must be safe. You may also be selling food items, cosmetic products or animal products, all of which have their own legal requirements.

Whether or not your products fall within these categories, it is important to ensure that consumers are not misled about the extent or existence of products’ health benefits, and there are some restrictions on claims. There are further requirements in relation to claims made about the product, quantity markings, pricing and consumer rights.

Medicines

Herbal remedies are medicinal products. They must have a marketing authorisation (or a product licence) unless they meet certain exemptions that allow them to be sold as unlicensed herbal medicines. To meet the terms of the exemptions products must be solely plant-based, have no written medicinal indications for use and must not have a trade name. Herbal remedies, even if exempt from licensing, still have to be safe and be labelled in accordance with the Medicines Act 1968.

The primary decision as to whether or not a product is a medicinal product is for the MHRA to make. If you have any doubts about whether the products that you sell are medicines or are exempt from licensing you should contact MHRA.

Animal products

Strict import controls exist regarding products of animal origin. Products of animal origin include all types of meat and meat products (including poultry), all types of fish and shellfish and products made from them (like oyster sauce), eggs and egg products, wild game, honey, and dairy products. It is recommended that you only purchase food products of animal origin from reputable suppliers that can prove that the food has been legally imported into the UK via proper commercial channels. If you wish to import animal products, your local authority environmental health service should be able to advise you on the current legal situation.

If officers believe an animal product has been imported illegally into the UK, they may take it away for destruction or ask you not to use it until you can prove it has been imported legally. A sample may also be taken of the item. You could be prosecuted for importing animal products illegally.

Some traditional remedies have been found to contain both animal and plant parts from endangered species, in contravention of legislation enforced by a number of bodies, including the police. Should you have any concerns about ingredients, detailed information on endangered species is available on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) website. CITES’s main aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. Alternatively, you could seek advice from the wildlife crime unit of your local police force or the Animal and Plant Health Agency (APHA) on 03000 200301.

Food

The definition of food includes any food, drink or food supplement that is part of the diet. Anything that is not a medicinal product, and is eaten or taken as a drink, is a food. Many of the products you sell are likely to be legally classed as food, particularly prepacked items such as herbal teas.

The Food Safety Act 1990, EU Regulation (EU) No 1169/2011 on the provision of food information to consumers, the Food Information Regulations 2014 and the Food Information (Wales) Regulations 2014 govern, amongst other things, labelling, ingredients and quality. The Act creates specific offences for contaminants in food, false descriptions and misleading claims.

All foods and food supplements must be labelled with certain information in English. Where the food is sold loose, such as Chinese herbs from jars, or is packed by you in the shop for direct sale to your customers, the following details are required:

  • a food name that customers can understand, indicating the true nature of the food
  • a statement, where applicable, that the product or ingredients have been irradiated or genetically modified
  • a declaration of the presence of any of the 14 specified allergens

Where the food is ‘prepacked’, a number of labelling requirements need to be fulfilled

Specific guidance on food supplements can be found on the GOV.UK website.

The food label may also make claims about the nutritional properties of the food – for example, ‘low fat’ – and/or the potential health benefits consuming the food may have. These claims are controlled by EU Regulation (EC) No 1924/2006 on nutrition and health claims made on foods, the Nutrition and Health Claims (England) Regulations 2007 and the Nutrition and Health Claims (Wales) Regulations 2007.

If the food (or any advertising for the food) makes a claim that consuming it can treat or be a remedy for cancer, or it gives any advice in connection with the treatment of cancer, this is an offence under the Cancer Act 1939.

Cosmetic products

EU Regulation (EC) No 1223/2009 on cosmetic products defines a cosmetic product as “any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours”. It does not apply to medicinal products, medical devices or biocidal products.

There are particular requirements regarding the importation, manufacture, packaging and labelling of cosmetic products. For further information see ‘Cosmetic products’.

Misleading & illegal claims

In addition to the specific controls in food legislation outlined above there are additional controls that apply more generally.

Any claims made about a product must be true and not misleading. This includes oral, written or pictorial claims. In addition, you are required to disclose any adverse information you know about a product if an average consumer would need to know this information to make an informed choice – for example, if it is known to be ineffective for the purposes for which it is commonly bought.

These requirements, which come under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), apply to all products, including but not limited to, medicines, foods, food supplements and cosmetics.

Additionally, as worldwide efforts to control the exploitation of endangered species increase, manufacturers have been known to include illegal ingredients (for example, tiger and bear parts) in products but to remove any references to these ingredients from packaging and advertisements. These manufacturers rely on their customers’ knowledge and experience of the products’ contents instead. Under the CPRs it is illegal to hide the fact that a product cannot legally be sold.

Product safety

All consumer products (including food and medicines) must be safe.

Products must be sold to customers with appropriate safety information / warnings in English. Such information might include, for example, dosage instructions and possible side effects. They might also include classes of persons for whom the product is unsuitable – for example, pregnant women, children and persons suffering from a particular disorder, such as high blood pressure.

You are strongly advised to obtain products from reputable suppliers and to retain any documentation that you receive from them, such as invoices.

Weights & measures

Prepacked goods, such as food / food supplements / cosmetics, all legally require an accurate quantity marking. This should typically be the weight, volume or number of items in the package. Metric quantities must be used.

If you are selling any products loose (from bulk) by reference to weight, you must use approved weighing equipment bearing appropriate stamps or stickers. Sales must be by reference to metric quantities.

Prices

There is a general requirement to display prices for retail goods on offer; however, if the goods can only be obtained as a result of a service (such as a consultation) there is no need to price the goods. If your services have a ‘fixed price’ then you must provide your customers with price information (using a price list, for example).

Prices you display must be accurate. It is an unfair commercial practice to give false or deceptive information about the price of goods, to omit material information about the price (such as compulsory additional charges or taxes) or if the value of any ‘saving’ displayed on a special offer was exaggerated.

Trade associations

You may also wish to seek advice from a trade or practitioner organisation, such as those in the list below.

Please note that the inclusion of an organisation in the list does not imply any approval or warranty as to the standing or capability of that organisation by the Chartered Trading Standards Institute.

British Herbal Medicine Association

Register of Chinese Herbal Medicine

Association of Traditional Chinese Medicine and Acupuncture (UK)

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.

Key legislation

Cancer Act 1939

Medicines Act 1968

Food Safety Act 1990

EU Regulation (EC) No 1924/2006 on nutrition and health claims made on foods

Nutrition and Health Claims (England) Regulations 2007

Nutrition and Health Claims (Wales) Regulations 2007

Consumer Protection from Unfair Trading Regulations 2008

EU Regulation (EU) No 1169/2011 on the provision of food information to consumers

Food Information Regulations 2014

Food Information (Wales) Regulations 2014

PLEASE NOTE

The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.

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Trading Standards and Consumer Protection Legislation – Cosmetics

This guidance is for England, Scotland & Wales

Cosmetics are subject to legal definition and products used solely as medicines are excluded. EU Regulation (EC) No 1223/2009 on cosmetic products makes it an offence to supply a cosmetic product that may cause damage to human health or that contains specific restricted or prohibited substances.

It is also an offence to supply an incorrectly labelled cosmetic product. The labelling requirements include the name and address of the manufacturer / importer, the ingredients, durability marking, function and precautions.

Finally, it is an offence not to undertake certain safety assessments and not to compile technical documentation.

There are also restrictions on animal testing of products.

The EU Regulation is enforced by trading standards in the UK by the Cosmetic Products Enforcement Regulations 2013.

What is a cosmetic product?

EU Regulation (EC) No 1223/2009 (referred to in this guide as ‘the Regulation’) defines a cosmetic product as: “any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours“.

The Regulation relates only to cosmetic products and not to medicinal products, medical devices or biocidal products.

A substance or mixture intended to be ingested, inhaled, injected or implanted into the human body is not a cosmetic product.

What about aromatherapy products?

These can be medicines, cosmetic products, or neither of these, depending on their intended use. If they are not medicines or cosmetic products, they are governed by the General Product Safety Regulations 2005.

Please ask your local trading standards service if you require more guidance on aromatherapy products.

Main provisions

It is an offence for a responsible person to supply a cosmetic product that may cause damage to human health when applied under normal or reasonably foreseeable conditions of use, taking into account:

  • its presentation and in particular, its form, odour, colour, appearance, packaging, labelling, volume or size should not endanger health and safety of consumers due to confusion with foodstuffs
  • its labelling
  • any instructions for its use and disposal
  • any other information provided by the responsible person

The responsible person can be one of the following:

  • the manufacturer within the EU (or they can nominate someone else in writing to be the responsible person)
  • a person in the EU designated by written mandate by a manufacturer that is outside the EU, but has the product manufactured in the EU
  • a distributor, where they place a cosmetic product on the market under their name or trademark, or modify a product already placed on the market in such a way that compliance with the applicable requirements may be affected – for example, repackaging or relabelling
  • the importer (established in the EU who places a product from a country outside the Union on the Union market)

Rules on animal testing

It is an offence to test a finished cosmetic product or an ingredient on an animal in order that the product may comply with the requirements of the Regulation.

The Regulation also restricts the supply of cosmetic products whose final formulation, or any ingredient or combination of ingredients, have been tested on animals.

Where a claim is made that a cosmetic product has not been tested on animals, this must be correct. In particular, the manufacturer or supplier must not have tested or commissioned tests on animals of the finished product, its prototype or any of their ingredients. The cosmetic product must also not contain any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products.

Composition

The rules on what may and may not be used as an ingredient, and the rules on restricted use and special precautions, are too detailed to be included here. If you require this information, you should make reference to the annexes of the Regulation (see ‘Key legislation’ below for link) or you should seek specialist advice.

Marking / labelling

The following information must be given on the packaging or labelling:

Name & address

The name and address of the responsible person established within a Member State must be on the container and the packaging. Where the product is manufactured outside the European Economic Area (EEA), the country of origin must also be given.

Durability

Where a cosmetic product has a minimum durability of 30 months or less, it must be marked on the container and the packaging with a best-before date or the symbol shown below.

Cosmetics products timer symbol

The indication must be in the form ‘Best used before the end of’, followed by the date (day / month / year, or month / year) or an indication of where the date appears on the packaging. If any particular conditions must be observed to guarantee the stated durability, these must also be described.

Where a product has a shelf life of more than 30 months, it must be marked with the symbol shown below together with an indication (in months, or years and months) of the period after opening for which the product can be used without harming the consumer.

Cosmetics products PAO symbol

Precautions

Precautions to be observed in use, as shown in the annexes of the Regulation, must be printed on the label. Special precautionary information on cosmetic products for professional use, such as in hairdressing, must appear on the container and packaging.

Batch code

The batch number of manufacture or the reference for identifying the goods.

Function

If not otherwise obvious from design and packaging.

Ingredients

The package in which the cosmetic product is supplied must bear a list of ingredients, headed ‘Ingredients’ (see note below), in descending order of weight, determined at the time the ingredient was added to the product.

All cosmetic products marketed in any part of the EU have to be labelled with a list of their ingredients, irrespective of the channel of distribution. This requirement also applies to imported products, professional products, free samples, tester samples, multi-component products, products sold by mail order or via the internet, and products provided in hotels and other public facilities.

You do not need to include any of the following as ingredients:

  • impurities in the raw materials
  • materials used in the preparation of, but not present in, the final product
  • materials used as solvents or carriers for perfumes and aromatic compositions

Perfume and aromatic compositions and their raw materials must be referred to as ‘perfume’ (see note below) or ‘aroma’ unless a more specific indication of their presence is required in annex III of the Regulation.

Ingredients in concentrations of less than 1% may be listed in any order after those of 1% or more.

Colouring agents may be listed in any order after the other ingredients. For decorative cosmetics marketed in various colours, all colouring agents in the range may be listed so long as the words ‘may contain’ or the symbol ‘+/-‘ is also used.

The ingredient name must be that listed in the International Nomenclature of Cosmetic Ingredients (INCI) or, if no such name is listed, one of the following:

  • chemical name
  • European Pharmacopoeia name
  • International Non-proprietary Name (INN), as recommended by the World Health Organisation
  • European Inventory of Existing Commercial chemical Substances (EINECS), International Union of Pure and Applied Chemistry (IUPAC), or Chemical Abstracts Service (CAS) identification reference
  • colour index number

database of INCI names is available on the Europa website.

All ingredients present in the form of nanomaterials must be clearly indicated in the list of ingredients. The names of such ingredients must be followed by the word ‘nano’ in brackets.

There is a procedure detailed in the Regulation that, subject to agreement, allows the confidentiality of some ingredients to be maintained.

For consistency across the EEA, the following conventions have been agreed by Cosmetics Europe (the European cosmetics industry trade association). Firstly, the word ‘ingredients’ should be given in capital letters, and secondly, the word ‘perfume’ should be replaced by ‘parfum’. Although these conventions do not have the force of law, their use will be accepted by UK enforcement authorities. If you are exporting cosmetic products to other EEA countries, you should confirm that the authorities in those countries also accept this convention.

Additional information

Additional information must be given where certain ingredients, such as preservatives and UV filters, are present. This information is specified in annexes III, IV, V, and VI of the Regulation.

Presentation

All required information must be visible, indelible and easily legible. The ingredients list must be given in a language that is easily understood by the consumer. All of the other information must be in English and can be supplemented by other languages.

There is one set of rules about presentation for ingredients lists and another set for the other information.

Ingredients list

The ingredients list must appear on the packaging or, if it is impossible to do so or there is no packaging, on the container. If the product is sold loose, the ingredients list can be given on the container in which the product is exposed for supply or on a notice. If this is not possible, the list can be given on a leaflet, label, tag, tape or card enclosed with or attached to the product, along with an indication referring the consumer to it (either by way of abbreviated information or the ‘hand and book’ symbol below). For small products such as soap and bath balls, a notice can be used instead of a leaflet, label, etc.

Hand and book symbol

Other information

The other information must normally appear on both the container and the packaging. However, if it is not possible for the batch code to appear on the container, it can appear on the packaging only. Similarly, where there are practical constraints, the conditions for use may appear on a leaflet, label, tag, tape or card enclosed with or attached to the product, again with an indication referring the consumer to it.

In the case of loose cosmetic products other than soap, all of the information must be given on the container in which the product is exposed for supply, or on a notice in immediate proximity to the container.

The requirements on the ‘responsible person’

The manufacturer of cosmetic products must comply with good manufacturing practice. Compliance with good manufacturing practice can be presumed where the manufacture is in accordance with the relevant harmonised standards, the references of which have been published in the Official Journal of the European Union.

In order to demonstrate that a cosmetic product is safe the responsible person must ensure that the cosmetic product has undergone a safety assessment and that a cosmetic product safety report is produced. This safety assessment must be carried out by a person in possession of a diploma or other evidence of formal qualifications awarded on completion of a university course of theoretical and practical study in pharmacy, toxicology, medicine or a similar discipline, or a course recognised as equivalent by a Member State.

Where a cosmetic product is supplied or manufactured in the UK, the responsible person is required to keep certain product information at the registered office address or the address detailed on the product. This information must be easily accessible to the nominated authorities, generally the responsible person’s local trading standards service, and can be requested in the case of medical emergency. The information must be in English or another language easily understood by the nominated authority.

The product information file (PIF) must include all of the following:

  • the qualitative and quantitative composition of the product. For perfume or perfume compositions in the product, you are only required to keep the name, code number and supplier identity. Qualitative information for all composites, and the quantitative information in relation to dangerous substances, must also be made easily available to the general public
  • the physico-chemical and microbiological specifications of the raw materials and the finished product, and the purity and microbiological control criteria of the cosmetic product
  • the method of manufacture, which must be in accordance with good manufacturing practice
  • an assessment of safety for human health of the finished product, including the criteria as stipulated in the Regulation. There are additional criteria where the product is intended for use on children under three years old or exclusively for use in external intimate hygiene (see above)
  • the name and address of the person or persons – with the minimum qualifications as detailed in the Regulation – who carried out the assessments
  • existing data on the undesirable effects on human health resulting from use of the product. This information must also be made easily available to the general public
  • evidence to justify any claims made by the product
  • data on any animal testing performed by the manufacturer, their agents or suppliers, relating to the development or safety evaluation of the product or its ingredients

Prior to placing the cosmetic product on the market the responsible person must submit the following information to the European Commission through the Cosmetic Products Notification Portal (CPNP):

  • the category of cosmetic product and its name or names, enabling its specific identification
  • the name and address of the responsible person where the product information file is made readily accessible in the country of origin
  • in the case of import into the Member State in which the cosmetic product is to be placed on the market, the contact details of a physical person to contact in the case of necessity
  •  the presence of substances in the form of nanomaterials and their identification
  • the frame formulation allowing for prompt and appropriate medical treatment in the event of difficulties

When the cosmetic product is placed on the market, the responsible person must notify to the Commission the original labelling, and, where reasonably legible, a photograph of the corresponding packaging.

Responsible persons who consider or have reason to believe that a cosmetic product that they have placed on the market is not in conformity with this Regulation must immediately take the corrective measures necessary to bring that product into conformity, withdraw it or recall it, as appropriate. Where the cosmetic product presents a risk to human health, responsible persons must immediately inform their local trading standards service giving details, in particular, of the non-compliance and of the corrective measures taken.

Penalties

Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment. For more information please see ‘Trading standards: powers, enforcement & penalties’.

Key legislation

EU Regulation (EC) No 1223/2009 on cosmetic products

Cosmetic Products Enforcement Regulations 2013

PLEASE NOTE

The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.

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