About this series of articles
This article is the sixth in a series about the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, often abbreviated to CC (ICAC), and how to apply it to your business so that you remain compliant.
This law came into effect from 13 June 2014, replacing older doorstep selling and distance selling law. Unfortunately, like most European law, it is anything but clear and practical. We hope this information makes understanding the implications for your business easier.
Like most business managers, you will probably scan this article with the hope that your operation is exempt from the horrors of the Regulations. Unfortunately, the Regulations are far reaching.
How the regulations define a trader and a consumer
The first point to mention is that the Regulations only apply to contracts between a trader and a consumer. If you are not a trader, or your customer is not a consumer, then you are exempt.
The definitions of trader and consumer are very simple so here they are:
A consumer is an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
A trader is a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
Whether you sell via the Internet or from your high street shop, you will probably never know whether most buyers of your goods are consumers or other traders. The point we make is that if you are in any doubt you should treat every buyer as a consumer or make clear that you deal only with business buyers.
If this last point is a term of your contract, a consumer would not be able to claim because they had fraudulently misrepresented their entitlement.
Whether or not you need to identify and deal differently with the two categories of customer depends on your product, the likelihood of it being returned, and the cost of sales per item. If offering the same rights to business customers is not significantly more expensive than not doing so, it might be easiest not to differentiate between different types of customer.
Complete exemptions from the Regulations
Complete exemptions are situations in which you are neither required to provide the pre-contract information nor does your customer have any rights under the Regulations to cancel the contract.
Contracts exempted from the Regulations completely are those relating to:
If you place a bet or play in a game of chance, whether buying a ticket from a lottery provider or spending time in a betting shop or casino, the Regulations do not apply.
Financial services such as banking, credit, insurance, personal pension or investment
Note that financial services may be provided in conjunction with other services that may not be exempt.
Note also that if, for example, a credit and insurance facility is supplied as part of a contract for the sale of goods or services then it is unlikely to be exempt.
The creation of immovable property or of rights in immovable property
An example of the creation of immovable property would be a personal windmill or other new structure attached to the land (and hence 'immoveable').
A reference to rights means intellectual property. There is an infinite range of IP, much of which is traded. An exempt right could therefore be a right in a second hand insurance policy, or a right to take electricity or to pick strawberries from your field.
The construction of new buildings
This includes substantially new buildings by the conversion of existing buildings - such as a barn conversion.
Note that construction of an extension to an existing building is not exempt.
Residential letting contracts are not covered. However estate agents service contracts for their work in connection with the sale or letting of properties are covered. So an estate agent must allow the cooling off period and provide full information when a property owner comes in with an instruction to let their house, but the poor old tenant is on his own.
Sale of goods or services of value less than £42
Goods or services sold for less than £42 are exempt provided the contract is formed off-premises.
The supply of consumables by regular roundsmen
A 'regular roundsman' is a business that calls door to door on a frequent and regular basis to a consumer's home or workplace.
They would include a fishmonger, your milkman, your window cleaner (if the service is not booked in advance) or a sandwich seller to workers.
Package travel contracts
These must be within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours.
Timeshare and long-term holiday products such as holiday clubs
These are regulated by other law. But your agency selling holiday cottage rentals is probably subject to the regulations. We have no evidence for this. It is possible that some trade association may have taken Counsel’s advice.
Contracts covered by other legislation
Also specifically excluded are certain other contracts, either because they are covered by separate legislation or because they are by their nature, not made in the same way as other contracts.
- purchases from vending machines, including ticket machines
- telephone box payments for calls as you make them
- any other charge for a single communication set up by a consumer
- for goods sold by order of a bailiff, or order of a court
Partial exeptions - exemption only from right to cancel
If your type of business is not listed above, then it is affected by the Regulations. End of story. However, there are further partial exemptions.
If your business type is listed below, your customer has no right to cancel. In other words, the fourteen day cooling off period is not applicable. The obligation for you to provide specific information about the contract remains.
Contracts exempted from the right to cancel include those:
- for the supply of prescription medication or other health products
- relating to passenger transport services
- for goods and services whose prices fluctuate due to market activity beyond the trader’s control like the sale of shares and commodities
- for goods prepared to order to the specific requirements of the customer
- for goods that expire or deteriorate rapidly; for example, certain foods
- for the supply of alcoholic drinks at an agreed price but where the trader cannot deliver for at least 30 days, during which time the price might have changed
- for urgent or specifically requested repair or maintenance services
This category is exempt subject to the trader complying with the information provisions and the service having a value of less than £170. An example would be a plumber who receives a call to replace a broken immersion heater in winter. The price is agreed over the phone at more than £170. If he was also asked to repair a dripping tap while he was there, the customer would also not have a cancellation right for this extra work.
- for the sale of newspapers, periodicals and magazines
But note that subscriptions are not exempt.
- for items sold at public auction
- for the provision of accommodation, transport of goods, vehicle rental services, catering or services related to leisure activities where the contract includes a specific date for performance
- for sealed goods that cannot be returned for health and safety reasons once the seal has been broken.
- Examples are medical supplies
- for sealed audio, video or computer software products that are unsealed after delivery
This is interesting because it is an exception to the rule that a consumer must have the opportunity to inspect the goods and check them.
- for goods that become inseparably mixed with other goods after delivery
So there it is. If you are not on the list, you must comply. Check how the regulations might affect your business.
We recommend that you read about the sale of downloaded content and software under the Regulations next. If your business does not sell digital content, you could also skip ahead to information requirements when you sell at distance or off-premises.
If you haven’t already read it, we also recommend reading about your customers' cancellation rights.
Unless you are exempt from the Regulations or are already compliant, you are likely to need to update your customer contract templates. These are likely to include your website terms and conditions if you sell online and your offline customer contract if you sell offline.
All Net Lawman documents have been updated to comply, if required, with the Regulations. We think that it will be much easier to edit one of our templates, than make changes to your existing documents.
If you have any questions about the Consumer Contract Regulations 2013, or would like help updating your contracts to comply, please ask us. We’d be delighted to help.