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Legal Guidance -
Trade Descriptions Act
This Guidance Notice seeks
to give information to healers in
Please note that I am not a
qualified legal practitioner and healers affected by this legislation should
seek professional legal advice as appropriate.
Please read the introductory
guidance on the legislative process in the
Chapter 29 of the Trade
Descriptions Act 1969 is reproduced below under the
terms of Crown Copyright Policy Guidance issued by HMSO (Her Majesty’s
Stationery Office). Copyright is owned
by the Crown and information on reproduction rights may be found on the HMSO
website http://www.opsi.gov.uk/advice/crown-copyright/copyright-guidance/reproduction-of-legislation.htm
.
Background
The Trade Descriptions Act
1969 was introduced in the spirit of giving a legal framework within which
wider consumer rights could be protected and within which penalties could be
applied to rogue traders. It updated existing legislation. The Act covers
several areas and not all of its sections are directly relevant to energy
healers.
The permissions surrounding
reproduction of legislation are that the entire document must be reproduced.
The Trades Description Act is produced below but is a lengthy document. Whilst
it should be read in full, the following websites give a reasonable overview of
the provisions of this legislation.
The Department of Trade and
Industry offer a very brief summary at www.dti.gov.uk/files/file8156.pdf
.
Trading Standards Central
which is a consumer protection information organisation gives more detailed guidance at
http://www.tradingstandards.gov.uk/cgi-bin/bglitem.cgi?file=BADV042-1111.txt
The two main areas covered
in the Act which impact upon the activities of energy healers are those of
misleading descriptions and of pricing.
Misleading descriptions
In the context of energy
healers offering healing services and training courses, the key principle to
follow is that any commentary or description should not be misleading and
should give as fair a picture as possible about what is being offered. Clearly,
energy healers have some difficulty with trying to give very precise
indications of likely outcomes from healing as this varies between client. Also, there are issues of being able to replicate
outcomes across a range of clients with similar conditions and there is a lack
of research to medically accepted standards about the work that we do. It is
better to say to potential clients and potential students in a genuine way that
outcomes from our work can be variable rather than to try to oversell what can
be delivered.
The legislation is intended
to cover serious misrepresentation rather than minor matters. The following
examples which are from real life would have potential for consideration as
serious misrepresentation under the legislation if the healers could not
provide adequate proof that they can substantiate the very definitive
statements:
·
Reiki can heal anything.
·
Reiki can heal condition x and condition y
and condition z.
·
Reiki will take all your cares and worries
away.
·
Reiki cures pains.
Other law relates to the
issue of describing services that we offer. In another posting that will be
made to this website, there will be reference to the law that requires that only
suitably qualified medical practitioners are allowed to say that they can treat
clients for physical problems and to cure them. There is precedence that people
like energy healers are able to say that they give spiritual healing but saying
that they can cure physical conditions is a no go area for energy healers.
I have not been able to find
definitive reference to what the law considers to be spiritual healing.
Although I am not a legal expert, I suspect that this might be a difficult area
for the law if there probably has been no quantitative or qualitative research
into what spiritual healing is and what outcomes arise from it.
Healers need to understand
that there is a concept in law about express terms and implied terms of
contract. An express term is a term of a
contract which is clearly stated and about which there is little room for
ambiguity. An implied term is one that is not stated but can reasonably be
assumed to have been implied in the process leading to entering into contract
and if appropriate coming from trade descriptions given. Even if all express
terms in the process leading to entering into a contract are accurate, an
energy healer could still have some difficulty with the law if it could be
argued that substantive implied terms were misleading.
Healers offering treatment
and training in the energies should reflect, therefore, about what how they
describe their work and the potential outcomes from it and take professional
legal advice about this if necessary.
Whatever feelings we might
have about the suitability of the legal framework within which we have to
operate to our work, the law stands until changed and we have to work within
it. If we feel that the law needs changing, the correct route is to work
through our professional bodies or Members of Parliament. What we should not do
is to ignore the law because it does not match our belief systems or
experiences.
Pricing
In mainstream life, pricing
is a key decision making area for commercial areas and which in the past has
been used in a manipulative way to the disadvantage of consumers. The law seeks
to protect consumers from the kind of situation where goods and services are
supposedly offered at a big discount to earlier prices as a way of encouraging
sales but in fact are not at any discount at all. This and other pricing
related matters are covered in the legislation below. In the past I have seen a
few healers use the buy it now while the
discount lasts approach and a lot of attention grabbing headlines to try to
encourage sales. This is fine as long as it is undertaken within the parameters
laid out in the legislation.
Reproduction of the legislation
The
legislation is reproduced below. Please click on the relevant section line in
the Arrangement of Sections part to go direct to the relevant part of the
legislation.
Trade Descriptions Act 1968
CHAPTER 29
ARRANGEMENT
OF SECTIONS
Prohibition of false trade
descriptions
Section
1. Prohibition of false trade
descriptions.
4. Applying a trade description to
goods.
5. Trade descriptions used in
advertisements.
Power to define terms and to
require display, etc. of information
9. Information, etc. to be given
in advertisements.
10. Provisions supplementary to
sections 8 and 9.
Misstatements other than false
trade descriptions
11. False or misleading
indications as to price of goods.
12. False representations as to
royal approval or award, etc..
13. False representations as to
supply of goods or services.
14. False or misleading statements
as to services, etc..
15. Orders defining terms for
purposes of section 14.
Prohibition of importation of certain
goods
16. Prohibition of importation of
goods bearing false indication of origin.
17. Restriction on importation of
goods bearing infringing trade marks.
19.
Time limit for prosecutions.
21. Accessories to offences
committed abroad.
22. Restrictions on institution of
proceedings and admission of evidence.
23. Offences due to fault of other
person.
24. Defence of mistake, accident,
etc..
25. Innocent publication of
advertisement.
27. Power to make test purchases.
28. Power to enter premises and
inspect and seize goods and documents.
29. Obstruction of authorised
officers.
30. Notice of test and intended
prosecution.
Miscellaneous
and Supplemental
32. Power to exempt goods sold for
export, etc..
33. Compensation for loss, etc.,
of goods seized under s. 28.
34. Trade marks containing trade
descriptions.
37.
Market research experiments.
40. Provisions as to Northern
Ireland.
41. Consequential amendments and
repeals.
42. Continuation, for three years,
of Orders in Council requiring indication of origin.
43. Short title and commencement.
Schedule
1. Consequential amendments.
An Act to replace the Merchandise Marks Acts 1887 to 1953 by fresh
provisions prohibiting misdescriptions of goods,
services, accommodation and facilities provided in the course of trade; to
prohibit false or misleading indications as to the price of goods; to confer
power to require information or instructions relating to goods to be marked on
or to accompany the goods or to be included in advertisements; to prohibit the unauthorised use of devices or emblems signifying royal
awards; to enable the Parliament of Northern Ireland to make laws relating to
merchandise marks; and for purposes connected with those matters. [30th May
1968].
BE it
enacted by the Queen's most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows:—
Prohibition of false trade descriptions
1.
Prohibition of false trade descriptions
(1) Any person who, in the course of a
trade or business
(a) applies a
false trade description to any goods; or
(b) supplies or
offers to supply any goods to which a false trade description is applied;
shall, subject to the provisions of this Act,
be guilty of an offence.
(2) Sections 2 to 6 of this Act shall have
effect for the purposes of this section and for the interpretation of
expressions used in this section, wherever they occur in this Act.
2. Trade description
(1)
A trade description is an indication, direct or indirect, and by whatever means
given, of any of the following matters with respect to any goods or parts of
goods, that is to say-
(a) quantity, size or gauge;
(b) method of
manufacture, production, processing or re-conditioning ;
(c)
composition;
(a)
fitness for purpose, strength, performance, behaviour
or accuracy;
(e) any physical
characteristics not included in the preceding paragraphs;
(f) testing by any
person and results thereof;
(g) approval by any
person or conformity with a type approved by any person ;
(h) place or date of
manufacture, production, processing or reconditioning;
(i)
person by whom manufactured, produced, processed or
reconditioned;
(/) other history, including previous ownership or
use.
(2)
The matters specified in subsection (1) of this section shall be taken—
(a) in relation to
any animal, to include sex, breed or cross, fertility and soundness;
(b)
in relation to any semen, to include the identity and
characteristics of the animal from which it was taken and measure of dilution.
(3)
In this section " quantity " includes
length, width, height, area, volume, capacity, weight and number.
(4)
Notwithstanding anything in the preceding provisions of this section, the
following shall be deemed not to be trade
descriptions, that is to say, any description or mark applied in pursuance of—
(a)
the Seeds Act 1920 ;
(b) section 2 of the
Agricultural Produce (Grading and Marking) Act 1928 (as amended by the
Agricultural Produce (Grading and Marking) Amendment Act 1931) or any
corresponding enactment of the Parliament of
(c)
the Plant Varieties and Seeds Act 1964 ;
{d}
the Agriculture and Horticulture Act 1964 ;
(e)
the Seeds Act (
(/)
the Horticulture Act (
any
description applied in pursuance of the Fertilisers and Feeding Stuffs Act 1926
to an article included in the first column of Schedule 1 to that Act, and any
mark prescribed by a system of classification compiled under section 5 of the
Agriculture Act 1967.
(5)
Notwithstanding anything in the preceding provisions of this section, where
provision is made under the Food and Drugs Act 1955, the Food and Drugs
(Scotland) Act 1956 or the Food and Drugs Act (Northern Ireland) 1958
prohibiting the application of a description except to goods in the case of
which the requirements specified in that provision are complied with, that
description, when applied to such goods, shall be deemed not to be a trade
description.
3. False Trade Description
(1)
A false trade description is a trade description which is false to a material
degree.
(2)
A trade description which, though not false, is misleading, that is to say,
likely to be taken for such an indication of any of the matters specified in
section 2 of this Act as would be false to a material degree, shall be deemed
to be a false trade description.
(3)
Anything which, though not a trade description, is likely to be taken for an
indication of any of those matters and, as such an indication, would be false
to a material degree, shall be deemed to be a false trade description.
(4)
A false indication, or anything likely to be taken as an indication which would
be false, that any goods comply with a standard specified or recognised by any
person or implied by the approval of any person shall be deemed to be a false
trade description, if there is no such person or no standard so specified,
recognised or implied.
4. Applying a trade mark description to goods
(1)
A person applies a trade description to goods if he—
(a)
affixes or annexes it to or in any manner marks it on
or incorporates it with—
(i) the goods themselves, or
(ii) anything in, on or with which
the goods are supplied; or
(b)
places the goods in, on or with anything which the trade description has been
affixed or annexed to, marked on or incorporated with, or places any such thing
with the goods; or
(c)
uses the trade description in any manner likely to be
taken as referring to the goods.
(2)
An oral statement may amount to the use of a trade description.
(3)
Where goods are supplied in pursuance of a request in which a trade description
is used and the circumstances are such as to make it reasonable to infer that
the goods are supplied as goods corresponding to that trade description, the
person supplying the goods shall be deemed to have applied that trade
description to the goods.
5. Trade descriptions used in advertisements
(1)
The following provisions of this section shall have effect where in an
advertisement a trade description is used in relations to any class of goods.
(2)
The trade description shall be taken as referring to all goods of the class, whether or not in existence at the time
the
advertisement is published—
(a)
for the purpose of determining whether an offence has
been committed under paragraph (a) of section 1(1) of this Act; and
(b) where goods of
the class are supplied or offered to be supplied by a person publishing or
displaying the advertisement, also for the purpose of determining whether an
offence has been committed under paragraph (6) of the said section 1(1).
(3)
In determining for the purposes of this section whether any goods are of a class
to which a trade description used in an advertisement relates regard shall be
had not only to the form and content of the advertisement but also to the time,
place, manner and frequency of its publication and all other matters making it
likely or unlikely that a person to whom the goods are supplied would think of the goods as belonging to the class in
relation to which the trade description is used in the advertisement.
6. Offer to supply
(1)
A person exposing goods for supply or having goods in his possession for supply
shall be deemed to offer to supply them.
Power to define terms and to require display, etc.,
of information
7. Definition Orders
(1) Where it appears to the Board of Trade
–
(a) that it would
be in the interest of persons to whom any goods are supplied; or
(b) that it would be in the interest of
persons by whom any goods are exported and would not be contrary to the
interest of persons to whom such goods are supplied in the United Kingdom;
that any expressions used in relation to the
goods should be understood as having definite meanings either –
(i) to those expressions when used in the course of a trade or
business as, or as part of, a trade description applied to the goods; or
(ii)
to those expressions when so used in such
circumstances as may be specified in the order;
and
where such a meaning is so assigned to an expression it shall be deemed for the
purposes of this Act to have that meaning when used as mentioned in paragraph (i) or, as the case may be, paragraph (ii) of this section.
8. Marking Orders
(1)
Where it appears to the Board of Trade necessary or expedient in the interest
of persons to whom any goods are supplied that the goods should be marked with
or accompanied by any information (whether or not amounting to or including a
trade description) or instruction relating to the goods, the Board may, subject
to the provisions of this Act, by order impose requirements for securing that
the goods are so marked or accompanied, and regulate or prohibit the supply of
goods with respect to which the requirements are not complied with; and the
requirements may extend to the form and manner in which the information or
instruction is to be given.
(2)
Where an order under this section is in force with respect to goods of any
description, any person who, in the course of any trade or business, supplies
or offers to supply goods of that description in contravention of the order
shall, subject to the provisions of this Act, be guilty of an offence.
(3)
An order under this section may make different provision for different
circumstances and may, in the case of goods
supplied in circumstances where the information or instruction required by the
order would not be conveyed until after
delivery, require the whole or part thereof to be also displayed near the
goods.
9. Information, etc., to be given in advertisements
(1)
Where it appears to the Board of Trade necessary or expedient in the interest
of persons to whom any goods are to be supplied that any description of
advertisements of the goods should contain or refer to any information (whether
or not amounting to or including a trade description) relating to the goods the
Board may, subject to the provisions of this Act, by order impose requirements
as to the inclusion of that information, or of an indication of the means by
which it may be obtained, in such description of advertisements of the goods as
may be specified in the order.
(2)
An order under this section may specify the form and manner in which any such
information or indication is to be included in advertisements of any
description and may make different provision for different circumstances.
(3)
Where an advertisement of any goods to be supplied in the course of any trade
or business fails to comply with any
requirement imposed under this section, any person who publishes the
advertisement shall, subject to the provisions of this Act, be guilty of an
offence.
10. Provisions supplementary to sections 8 and 9
(1)
A requirement imposed by an order under section 8 or section 9 of this Act in
relation to any goods shall not be confined to goods manufactured or produced
in any one country or any one of a number of countries or to goods manufactured
or produced outside any one or more countries, unless—
{a) it is imposed with respect to a
description of goods in the case of which the Board of Trade are satisfied that
the interest of persons in the United Kingdom to whom goods of that description
are supplied will be sufficiently protected if the requirement is so confined;
and
(b) the Board of
Trade are satisfied that the order is compatible with the international
obligations of the
(2)
Where any requirements with respect to any goods are for the time being imposed
by such an order and the Board of Trade are satisfied, on the representation of
persons appearing to the Board to have a substantial interest in the matter,
that greater hardship would be caused to such persons if the requirements
continued to apply than is justified by the interest of persons to whom such
goods are supplied, the power of the Board to relax or discontinue the
requirements by a further order may be exercised without the consultation and
notice required by section 38(3) of this Act.
Misstatements other than false trade descriptions
11. False or misleading indications as to price of
goods
(1)
If any person offering to supply goods of any description gives, by whatever
means, any false indication to the effect that
the price at which the goods are offered is equal to or less than—
(a)
a recommended price; or
(b)
the price at which the goods or goods of the same
description were previously offered by him;
or is less than such a price
by a specified amount, he shall, subject to the provisions of this Act, be
guilty of an offence.
(2)
If any person offering to supply any goods gives, by whatever means, any
indication likely to be taken as an indication that the goods are being offered
at a price less than that at which they are in fact being offered he shall,
subject to the provisions of this Act, be guilty of an offence.
(3)
For the purposes of this section—
(a) an indication
that goods were previously offered at a higher price or at a particular price—
(i) shall be treated as an indication that they were so
offered by the person giving the indication, unless it is expressly stated that
they were so offered by others and it is not expressed or implied that they
were, or might have been, so offered also by that person; and
(ii)
shall be treated, unless the contrary is expressed, as an indication that they
were so offered within the preceding six months for a continuous period of not
less than twenty-eight days;
(b) an indication as
to a recommended price—
(i) shall be treated, unless the
contrary is expressed, as an indication that it is a price recommended by the
manufacturer or producer; and
(ii)
shall be treated, unless the contrary is expressed, as an indication that it is
a price recommended generally for supply by retail in the area where the goods
are offered;
(c)
anything likely to be taken as an indication as to a
recommended price or as to the price at which goods were previously offered
shall be treated as such an indication; and
(d) a person
advertising goods as available for supply shall be taken as offering to supply
them.
12. False representations as
to royal approval or award, etc.
(1)
If any person, in the course of any trade or business, gives, by whatever
means, any false indication, direct or indirect, that any goods or services
supplied by him or any methods adopted by him are or are of a kind supplied to
or approved by Her Majesty or any member of the Royal Family, he shall, subject
to the provisions of this Act, be guilty of an offence.
(2)
If any person, in the course of any trade or business, uses, without the authority
of Her Majesty, any device or emblem signifying the Queen's Award to Industry
or anything so nearly resembling such a device or emblem as to be likely to
deceive, he shall, subject to the provisions of this Act, be guilty of an
offence.
13. False representations as
to supply of goods or services, etc.
(1)
If any person, in the course of any trade or business, gives, by whatever
means, any false indication, direct or indirect, that any goods or services
supplied by him are of a kind supplied to any person he shall, subject to the
provisions of this Act, be guilty of an offence.
14. False or misleading statements as to services,
etc..
(1)
It shall be an offence for any person in the course of any trade or
business—
(a) to make a
statement which he knows to be false ; or
(b) recklessly to
make a statement which is false;
as to any of the following matters, that is to say,—
(i) the provision in the course of
any trade or business of any services, accommodation or facilities;
(ii)
the nature of any services, accommodation or
facilities provided in the course of any trade or business ;
(iii)
the time at which, manner in which or persons by whom
any services, accommodation or facilities are so provided;
(iv)
the examination, approval or evaluation by any person
of any services, accommodation or facilities so provided; or
(v)
the location or amenities of any accommodation so
provided.
(2)
For the purposes of this section—
(a)
anything (whether or not a statement as to any of the
matters specified in the preceding subsection) likely to be taken for such a
statement as to any of those matters as would be false shall be deemed to be a
false statement as to that matter; and
(b) a statement made
regardless of whether it is true or false shall be deemed to be made
recklessly, whether or not the person making it had reasons for believing that
it might be false.
(3)
In relation to any services consisting of or including the application of any
treatment or process or the carrying out of any repair, the matters specified
in subsection (1) of this section shall be taken to include the effect of the
treatment, process
or repair.
(4)
In this section " false " means false to a
material degree and " services " does not include anything done under
a contract of service.
15. Orders defining terms for purposes of section 14
(1)
Where it appears to the Board of Trade that it would be in the interest of
persons for whom any services, accommodation or facilities are provided in the
course of any trade or business that any expressions used with respect thereto
should be understood as having definite meanings, the Board may by order assign
such meanings to those expressions when used as, or as part of, such statements
as are mentioned in section 14 of this Act with respect to those services,
accommodation or facilities; and where such a meaning is so assigned to an
expression it shall be deemed for the purposes of this Act to have that meaning
when so used.
Prohibition of importation of certain goods
16.
Prohibition of importation of goods bearing false indication of origin
(1)
Where a false trade description is applied to any goods outside the United
Kingdom and the false indication, or one of
the false indications, given, or likely to be taken as given, thereby is an
indication of the place of manufacture, production,
processing or reconditioning of the goods or any part thereof, the goods shall
not be imported into the United Kingdom.
17.
Restrictions in importation of goods bearing infringing trade marks
(1)
In the Trade Marks Act 1938 the following section shall be inserted after section 64 :—
"
64A.—(1) The person who is registered as the proprietor or registered user of a
trade mark in respect of any goods may give notice in writing to the
Commissioners of Customs and Excise (in this section referred to as the 1933 c.
22. Commissioners)—
(a)
that he is the proprietor or registered user of that
trade mark, and
(b)
that such goods bearing the trade mark are expected to arrive in the United
Kingdom at a time and place and by a consignment specified in the notice, and
(c)
that the use within the United Kingdom of the trade mark in relation to the
goods would infringe the proprietor's exclusive right to that use, and
(d) that he requests
the Commissioners to treat the goods as prohibited goods.
(2)
Where a notice has been given under this section in respect of any goods
bearing a trade mark and has not been withdrawn and the requirements of any
regulations made under this section are complied with, then, subject to the
following provisions of this section, the importation into the United Kingdom
of the goods shall, if the condition of paragraph (c) of the preceding
subsection is satisfied, be deemed to be prohibited unless the importation is
for the private and domestic use of the person importing the goods.
(3)
The Commissioners may make regulations prescribing the form in which notices
are to be given under this section, and requiring a person giving such a
notice, either at the time of giving the notice or at the time when the goods
in question are imported, or at both those times, to furnish the Commissioners
with such evidence, and to comply with such other conditions (if any), as may
be specified in the regulations, and any such regulations may include such
incidental and supplementary provisions as the Commissioners consider expedient
for the purposes of this section.
(4)
Without prejudice to the generality of the preceding subsection, regulations
made under that subsection may include provision for requiring a person who has
given a notice under subsection (1) of this section, or a notice purporting to
be a notice under that subsection,—
(a)
to pay such fees in respect of the notice as may be
prescribed by the regulations ;
(b) to give to the Commissioners such security as may be so prescribed, in respect of any liability or expense which they may incur in consequence of the detention of any goods to which the notice relates, or in consequence of anything done in relation to goods so