Distance Selling regulations - earrings

hollydays

Weren't The House of Frazer fined and taken to court by Trading Standards last year?

http://www.bbc.co.uk/news/uk-wales-38154235

Torfaen council said the prosecution delivered a clear warning message that its trading standards officers will "crackdown on those who fail to adhere to government guidelines and consumer protection legislation."
In addition to the £40,000 fine, House of Fraser was also ordered to pay £8,621 in costs and charges.

dontneedtheheadache

neilmcl wrote: »

Can we assume that you purchased all the goods online? Were the earrings sealed?

Edit: Having read your reply above, as they were not sealed as such then they are covered by the Consumer Contracts Regulations 2013 (CCRs) and you have the right to cancel.



I have a similar problem, earrings bought online via Etsy (not custom made btw), would like to return them but the online shop said earrings excluded. They were sent unsealed, loose in a box.

I've been looking at section 28 but I'm still not clear?!

Help please, where do I stand? Thanks

DoaM

The trader will be relying on Section 28 (3) (a):

(a) in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

I've highlighted the key aspect that means this clause cannot be used ... they didn't send the items sealed thus they didn't become unsealed after delivery - they were unsealed before delivery. Therefore you'ere entitled to return them as per the legislation.

dontneedtheheadache

Thanks for replying DoaM but they are sticking to not refunding.

Whilst reading that it is slightly ambiguous!

This is what they have said.....

Unfortunately we are unable to change what Etsy applies as standard options for returns. All information about the earrings and our return policy are available in full to be read at any stage during the order journey. If something was unclear, we are on standby to be contacted so you have all the necessary clarifications before ordering. We do not assume either way that you have worn the earrings or not, as a reputable brand we simply have a policy enforced to follow, which is also there to safeguard customers.

Thank you for forwarding the link, I can confirm we are familiar with it and fully aware of the consumer rights and trading standards of both the customer and the seller and for this situation specifically, we are entitled to reject the earrings being unsealed for health and safety reasons and do not offer any alternative options.

So because they sent them unsealed that means they have a get out they are saying
I need clear guidlines due to sending unsealed basically

dontneedtheheadache

Also Etsy Refund policy here....

Returns & exchanges
I gladly accept returns, exchanges and cancellations
Contact me within: 7 days of delivery
Ship items back within: 14 days of delivery
Request a cancellation within: 24 hours of purchase
The following items can't be returned or exchanged
Because of the nature of these items, unless they arrive damaged or defective, I can't accept returns for:
Custom or personalised orders
Perishable products (like food or flowers)
Digital downloads
Intimate items (for health/hygiene reasons)

Their added policy here....
***** will be happy to offer a refund on goods returned within 10 days of the date of dispatch (this corresponds with the date on the receipt), subject to the following conditions:
-The goods have not been worn and are in the same condition as when they were dispatched, complete with all packaging, certificates, guarantee booklets and the purchase receipt.
-The goods have not been personalised or adjusted or otherwise altered in any way.
-The goods are not earrings.
-The goods are not sale merchandise.

unholyangel

dontneedtheheadache wrote: »

Thanks for replying DoaM but they are sticking to not refunding.

Whilst reading that it is slightly ambiguous!

This is what they have said.....

Unfortunately we are unable to change what Etsy applies as standard options for returns. All information about the earrings and our return policy are available in full to be read at any stage during the order journey. If something was unclear, we are on standby to be contacted so you have all the necessary clarifications before ordering. We do not assume either way that you have worn the earrings or not, as a reputable brand we simply have a policy enforced to follow, which is also there to safeguard customers.

Thank you for forwarding the link, I can confirm we are familiar with it and fully aware of the consumer rights and trading standards of both the customer and the seller and for this situation specifically, we are entitled to reject the earrings being unsealed for health and safety reasons and do not offer any alternative options.

So because they sent them unsealed that means they have a get out they are saying
I need clear guidlines due to sending unsealed basically

The law is clear.

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

Was the contract for the supply of sealed goods (that were sealed due to hygiene/health reasons)?
If no, you have the right to cancel.
If yes, did the goods become unsealed after delivery?
If no, you have the right to cancel.
If yes, you have lost the right to cancel by unsealing them.

There is no exemption for earrings or for goods that cannot be returned due to hygiene reasons. There is however an exemption for goods that are sealed for hygiene reasons IF (and only if) they become unsealed after delivery.

Send the retailer a letter before action. As I said in a reply to the OP, specifically point out that misleading a consumer about their rights can amount to a criminal offence.

unholyangel

dontneedtheheadache wrote: »

Also Etsy Refund policy here....

Returns & exchanges
I gladly accept returns, exchanges and cancellations
Contact me within: 7 days of delivery
Ship items back within: 14 days of delivery
Request a cancellation within: 24 hours of purchase
The following items can't be returned or exchanged
Because of the nature of these items, unless they arrive damaged or defective, I can't accept returns for:
Custom or personalised orders
Perishable products (like food or flowers)
Digital downloads
Intimate items (for health/hygiene reasons)

Their added policy here....
***** will be happy to offer a refund on goods returned within 10 days of the date of dispatch (this corresponds with the date on the receipt), subject to the following conditions:
-The goods have not been worn and are in the same condition as when they were dispatched, complete with all packaging, certificates, guarantee booklets and the purchase receipt.
-The goods have not been personalised or adjusted or otherwise altered in any way.
-The goods are not earrings.
-The goods are not sale merchandise.

Both return policies fall foul of CCRs (assuming the seller is uk based of course).

Firstly, the consumer contract regulations give you a minimum of 14 days starting the day after delivery to communicate to the retailer you want to cancel (and it needs to be sent within 14 days, even if it hasnt been received by them). You then have 14 days from notifying them of your intent to cancel to actually return the goods. However, if the trader does not comply with giving you certain information (including that you have the right to cancel, the conditions, time limits and when the right may be lost - due to unsealing for example) then you have up to a maximum of 1 year and 14 days to notify them you want to cancel.

The information they need to provide must also be conformed in durable medium - emails are durable but websites (and links to websites sent by email) are not.

dontneedtheheadache

Many thanks again!

Just had this back from them having sent the email further down....
I believe there is a misunderstanding here, we don’t have to deliver the earrings sealed, this is why we do not accept returns and this is clearly stated in our return policy.

We take really seriously what we do and we absolutely don’t feel above the law, the last thing we want is to make a customer unhappy, but unfortunately here the situation is different therefore we have all the rights to defend ourself. You are correct you are entitled to a 14 days cooling period where you can ask to return an item, however in your case it would only work if the item was faulty, which this is not the case.

Please feel free to report the case to Etsy, hopefully this will help to resolve this issue in the best way for both parties. Also if you would like more information please feel free to contact (link to Citizens Advice) they may be able to give you more information and explain the situation in a better way that we do.

---

I sent ....

Thank you for your reply but once agin you are failing to accept EU/UK Consumer Contract Regulations.

---

The right to cancel also doesn’t apply to:

Where the consumer breaks a seal after delivery, in the cases where that seal is necessary for the protection of health or for maintaining hygiene (for example, on earrings for pierced ears)****NO SEAL WAS PROVIDED IN THE 1ST PLACE.****
· where the consumer unseals audio or video recordings or computer software after delivery
· where the goods become mixed inseparably with other goods after delivery, for example where a craft kit is sold and the consumer has combined the separate parts.
So you don’t have to refund handmade earrings under right to cancel as long as:
you sell them face to face
they are made to a consumers specification (not just choosing the colour)
you have personalised the earrings
OR if you sell the earrings in a sealed bag for hygiene reasons.****NO SEALED BAG WAS PROVIDED IN THE 1ST PLACE****
Note – this would need to be stated in your Terms and Conditions and be made clear to the customer and they could be still be returned just not with a broken seal

---

You have NOT provided a sealed bag for hygiene reasons therefore, by law, they are treated like any other item.

You have also stated that return have to be within 10 days, again, this is against the law of the CCR and has to be 14 days.

I am left with no other option but to report this to Etsy and, if needs be, Trading Standards.

I'm sorry you feel you are above the law but that is also why Etsy gives correct, albeit brief, clear refund guidelines.

---

So they are refusing and sent me a link to Citizens Advice!

unholyangel

dontneedtheheadache wrote: »

Many thanks again!

Just had this back from them having sent the email further down....
I believe there is a misunderstanding here, we don!!!8217;t have to deliver the earrings sealed, this is why we do not accept returns and this is clearly stated in our return policy.

Simplify what you're saying to them. Ask them what provision of the consumer contract regulations they are relying on as a basis for their goods being exempt from the right to cancel.

If/when they respond with the above paragraph I quoted, explain (as I did to you) that that exemption only applies to contracts for the supply of sealed goods, this was a contract for unsealed goods and therefore, they cannot rely on the exemption. Explain this is what you meant - not that they had to sell the goods sealed.

Don't keep banging your head off a wall though. If you aren't getting anywhere, cut to the chase and send a letter before action.

dontneedtheheadache

unholyangel you're just showing a bit holy there, thanks!

I'll do that and meanwhile just emailed all the correspondance to Chartered Trading Standards Institute helpline to see what they say...no reply until Monday at earliest.

It just annoys me that they they are knowingly trying to get round the law regarding distance selling by deliberately not providing bags...at least that's what they are indicating!