The Trade Descriptions Act 1968

1. Distance selling 01: basic law for a new business selling goods or services
2. Distance selling 02: an update since changes in April 2005

PART-1

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 reconditioning;

(c)     composition;

(d)    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;

(j)      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—

F1  (a)     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)    section 2 of the M1Agricultural Produce (Grading and Marking) Act 1928 (as amended by the M2Agricultural Produce (Grading and Marking) Amendment Act 1931) or any corresponding enactment of the Parliament of Northern Ireland;

(c)     the M3Plant Varieties and Seeds Act 1964;

(d)     the M4Agriculture and Horticulture Act 1964 [F2or any Community grading rules within the meaning of Part III of that Act];

(e)    the M5 Seeds Act (Northern Ireland) 1965;

(f)      the M6 Horticulture Act (Northern Ireland) 1966;

[F3(g)     The Consumer Protection Act 1987;]

[F4(h)     the Plant Varieties Act 1997;]

[F5        any statement made in respect of, or mark applied to, any material in pursuance of Part IV of the M7 Agriculture Act 1970, any name or expression to which a meaning has been assigned under section 70 of that Act when applied to any material in the circumstances specified in that section] . . . F6 any mark prescribed by a system of classification compiled under section 5 of the M8 Agriculture Act 1967 [F7 and any designation, mark or description applied in pursuance of a scheme brought into force under section 6(1) or an order made under section 25(1) of the Agriculture Act 1970]

(5)    Notwithstanding anything in the preceding provisions of this section,

[F8(a)]     where provision is made under [F9 the Food Safety Act 1990] or the [F10Food Safety (Northern Ireland) Order 1991][F11 or the Consumer Protection Act 1987] 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.

[F12(b)   where by virtue of any provision made under Part V of the Medicines Act 1968 (or made under any provisions of the said Part V as applied by an order made under section 104 or section 105 of that Act) anything which, in accordance with this Act, constitutes the application of a trade description to goods is subject to any requirements or restrictions imposed by that provision, any particular description specified in that provision, when applied to goods in circumstances to which those requirements or restrictions are applicable, shall be deemed not to be a trade description.]

[F13(c)    where any description of a veterinary medicinal product is required to be applied to the product by an authorisation for the product granted under the Veterinary Medicines Regulations 2006, that description, when applied to the product, shall be deemed not to be a trade description.]

Annotations:

Amendments (Textual)

F1    S. 2(4)( a) repealed by European Communities Act 1972 (c. 68), s. 4, Sch. 3 Pt. III

F2    Words inserted by European Communities Act 1972 (c. 68), s. 4, Sch. 4 para. 4(2)

F3   S. 2(4)( g) inserted by Consumer Safety Act 1978 (c. 38), s. 7(8) and as substituted by Consumer Protection Act 1987 (c. 43, SIF 109:1), s. 48(1), Sch. 4 para. 2(1)(a)

F4    S. 2(4)(h) inserted (8.5.1998) by 1997 c. 66, s. 51(4); S.I. 1998/1028, art.2.

F5    Words substituted (1.1.1974) by Agriculture Act 1970 (c. 40), s. 87(3)

F6    Word repealed by Agriculture Act 1970 (c. 40), s. 6(4), Sch. 5 Pt. V

F7    Words added by Agriculture Act 1970 (c. 40), s, 6(4)

F8    Word "(a)" inserted by Medicines Act 1968 (c. 67, SIF 84), s. 135(1), Sch. 5 para. 16

F9    Words “the Food Safety Act 1990” substituted (E.W.S.) by Food Safety Act 1990 (c. 16, SIF 53:1, 2), s. 59(1), Sch. 3 para. 6

F10  Words in s. 2(5)(a) substituted (N.I.) (21.5.1991) by S.I. 1991/762 (N.I. 7), art. 51(1), Sch. 2 para.8; S.R. 1991/175, art. 2(1)

F11 Words substituted by Consumer Protection Act 1987 (c. 43, SIF 109:1), s. 48(1), Sch. 4 para. 2(1)(b) for words inserted by Consumer Safety Act 1978 (c.38, SIF 109:1), s. 7(8)

F12  Para. ( b) inserted by Medicines Act 1968 (c. 67, SIF 84), s. 135(1), Sch. 5 para. 16

F13  S. 2(5)(c) added (1.10.2006) by The Veterinary Medicines Regulations 2006 (S.I. 2006/2407), reg. 44(3), Sch. 9 Pt. 1 para. 2 (with reg. 3)

Modifications etc. (not altering text)

C1   S. 2(5) amended (14.2.1989) by Medicines Act 1968 (c. 67), s. 135(1), Sch. 5 para. 16

Marginal Citations

M1    1928 c. 19.

M2    1931 c. 40.

M3    1964 c. 14.

M4    1964 c. 28.

M5    1965 c. 22 (N.I.)

M6    1966 c. 15 (N.I.)

M7    1970 c. 40

M8    1967 c. 22.

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.

Annotations:

Modifications etc. (not altering text)

C1    S. 3(1) amended (1.1.1975) by Hallmarking Act 1973 (c. 43), s. 1(4)

4.  Applying a trade 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.

Annotations:

Modifications etc. (not altering text)

C1    S. 4 extended (1.1.1975) by Hallmarking Act 1973 (c. 43), s. 1(7) ( b)

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 relation 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 (b) 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.

Annotations:

Modifications etc. (not altering text)

C1   S. 5(3) applied (1.1.1975) by Hallmarking Act 1973 (c. 43), s. 1(8)

6.   Offer to supply

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

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, the Board may by order assign such 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 United Kingdom.

(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  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1

Annotations:

Amendments (Textual)

F1    S. 11 repealed by Consumer Protection Act 1987 (c. 43, SIF 109:1), s. 48(3), Sch. 5

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

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

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

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. Restriction on importation of goods bearing infringing trade marks

In the M1Trade 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 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 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 sercurity 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 any thing done in relation to goods so detained;

(c)     whether any such security is given or not, to keep the Commissioners indemnified against any such liability or expense as is mentioned in the preceding paragraph.

(5)     For the purposes of section 11 of the Customs and Excise Act 1952 (which relates to the disposal of duties) any fees paid in pursuance of regulations made under this section shall be treated as money collected on account of customs.

(6)     Regulations made under subsection (3) of this section shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

Annotations:

Modifications etc. (not altering text)

C1    The text of s. 17 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Marginal Citations

M1    1938 c. 22

Provisions as to offences

18. Penalty for offences

A person guilty of an offence under this Act for which no other penalty is specified shall be liable—

(a)    on summary conviction, to a fine not exceeding four hundred pounds; and

(b)    on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.

Annotations:

Modifications etc. (not altering text)

C1    Ss. 18, 19 extended with modifications by S.I. 1986/26, reg. 11(1) and S.I. 1988/1586, reg. 4(1)

19. Time limit for prosecutions

(1)    No prosecution for an offence under this Act shall be commenced after the expiration of three years from the commission of the offence or one year from its discovery by the prosecutor, whichever is the earlier.

(2)    Notwithstanding anything in [<