Consumer Rights vs Vendor T & C’s

unholyangel

Parking_Eyerate said:

The questions not answered by paragraph 49 were:

a)      What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?

and

(b)      Does the information that the trader has to give pursuant to Article 6(1)(k) of [Directive 2011/83] before the contract becomes binding have to be provided in such a way that the consumer is informed, with specific reference to the article to be purchased (here a mattress) and the seal that is applied, that he will lose the right of withdrawal if he removes the seal?’

Where is question 2 a limited to the appearance of packaging? It simply says what requirements must be satisfied, it does not ask ‘excluding whether or not the packaging needs to have a specified purpose, what requirements does it need to satisfy’. I previously assumed you weren’t deliberately trying to twist things just to serve your purpose but on reading your most recent post I am not sure if I was right in that assumption.

Please point out to me where I questioned the authority of the CJEU judgement. I haven’t, I have simply questioned your interpretation of it.

I don’t see where I have challenged you to prove your views, I have disagreed with your interpretation of the CJEU judgement and I have provided reasons why I disagree with it.

Yes, the AG is senior, I don’t think we disagree on that but, like everyone else, his views can still be questioned.

I do disagree that the CJEU decision covers the purpose for which goods must be sealed and I hope we can just move on and accept we disagree.

Regarding the AG’s opinion, I actually think that the intended purpose of the packaging is possibly a complete red herring. Looking at the AG’s conclusion on the point in paragraph 49

49.

Therefore, in the event that the Court rules on point (a) of the second question referred for a preliminary ruling, I believe that the answer should be that goods packed in packaging that cannot be resealed so that there is no doubt that the goods in question could have been tested or tried on by the purchaser, without, however, a requirement that the packaging contains specific information expressly indicating that there is a seal which, if broken, will affect the consumers right of withdrawal, constitutes ‘sealed’ goods within the meaning of Article 16(e) of Directive 2011/83. In my opinion, such an express indication should, by contrast, be given in the context of the pre-contractual information provided for in Article 6(1) of that directive which I shall now consider. I think the pertinent question would be whether or not the packaging served to prevent the item being resealed without leaving any doubt that they had been tested or tried on. Following on from this, I think it is possible that if the goods were found to be goods for which health/hygiene considerations apply then the primary ‘intent’ of the packaging would not be relevant. Regarding your last question, I refer you back to a previous post. I think seals/packaging can reasonably serve multiple purposes and the primary purpose of packaging may be somewhat subjective and irrelevant. For example, another purpose of blister packs may be dosage monitoring and the primary purpose of the blister pack could be different for different products.

I didn't say it was limited to appearance. I said appearance/characteristics. 

To which the AG said:

40.      In point (a) of its second question, the referring court asks, in essence, what characteristics must the packaging of goods have for it to be considered ‘sealed’ within the meaning of Article 16(e) of Directive 2011/83, in the event that the goods in question fall within the category of goods ‘which are not suitable for return due to health protection or hygiene reasons’, on which the exception from the right of withdrawal provided for in that provision is based. (32) In accordance with the reasons for its decision, that court asks, more specifically, whether goods of that type must be packaged in such a way that ‘not only [is it] necessary to ensure that the unsealing cannot be reversed, but in addition it [is] clear from the circumstances (for example by printing on the word “seal”) that this is not mere transportation packaging, but rather a seal for health protection and hygiene reasons’.
41.      In my opinion, the question referred and the reasons therefor raise two different issues, as reflected in the observations submitted to the Court. (33) The referring court raises the question, on the one hand, of the physical properties required for packaging to be considered ‘sealed’ within the meaning of Article 16(e) of Directive 2011/83 and, on the other, the possible need to include on that packaging a distinctive sign drawing the consumer’s attention to the fact that such a seal exists.

As per paragraph 49, that is the conclusion. The basis for the conclusion is set out in the preceding paragraphs. That is the way judgements are structured. The parties/matter before the court, which points of law are being considered, it will then go on to consider each of those points of law in detail before then examining how those principles apply to the case before them, before offering a conclusion. 

But a conclusion, without the corresponding basis for arriving at that conclusion, is worthless. 

As for parts I've bolded from your post...what he is saying is that if packaging is resealable (without it being apparant the goods have been compromised) then that seal does not offer any guarantee to the health/hygiene of the item and, accordingly, cannot be deprived of the hygiene/health protection when the seal is opened. What he said in the preceding paragraphs explains the basis for his conslusion. Particularly paragraphs 44-45 (purpose is another word for intent)

44.      In that regard, I consider, as put forward, in essence, by slewo, (39) the Belgian Government (40) and the Commission, that it is strictly necessary to take account of the purpose that the ‘seals’ may be expected to serve within the meaning of Article 16(e). The aim of that provision is, in my opinion, to exclude from the right of withdrawal all goods which must be sealed due to health protection and hygiene reasons, and thus to prevent the consumer from returning such goods to the trader, because once those goods have been removed from their protective packaging, they suffer irremediable loss of value in terms of guaranteeing health or hygiene, with the result that they cannot be resold. (41)
45.      I therefore take the view that for a protective coating to be considered ‘sealed’ within the meaning of the provision, it must reliably guarantee the cleanliness of the product it contains. That criterion presupposes that the packaging is strong enough to protect it and that it cannot be opened without visibly damaging it, so that it is evident if the article in question has been tested or tried on by the consumer. By way of an example, a sealed plastic or foil film which would thus be impossible to return in its original condition if opened voluntarily would satisfy those conditions.

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

unholyangel

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

The AG has basically said almost exactly what I've said (I do sometimes know what I'm talking about). That the seal needs to actually offer protection against hygiene to come within the scope of the article/that the goods need to be sealed for hygiene/health purposes. The AG does not make the decisions, they are supposed to consider opposing arguments and give their opinion on how the court should rule. So while his opinion is not binding, it does carry extreme weight on the matter. 

I'm sure my last reading of the details is that in matters of EU law, the EU has the say on interpretation under the terms of the withdrawal agreement. I'd need to check the final draft to be sure though. I just went by parliament page earlier as I far too interested in the hygiene aspect to wade through that polished turd. 

Also why I've kept responding/debating the point much longer than I normally would. It's a new point that hasn't been discussed before and I did say I was broaching it because I thought it might be of interest/shock a few.

Nobody I can see has said that the seal doesn't actually have to be useful as a seal. What we have said is that the intention of the person or entity who sealed it in the first place is irrelevant.

What you're basically arguing is that if a retailer sold two identical pairs of knickers (for the purposes of the argument we'll assume kickers are definitely something that can't be returned for hygiene reasons), one in a sealed polythene bag, sealed by the manufacturer to stop them getting soiled in transit to the retailer, and the other was in an identical polyethene bag sealed by the retailer for "hygiene reasons" that the retailer could not refuse the return of the pair sealed by the manufacturer because they didn't seal it for "hygiene reasons."  And that is clearly insane.  It's the same product, with an identical seal.

No, what I'm suggesting is that if knickers are a type of good that would be unsuitable for return if deprived of hygiene/health protection, that those goods will have been protected against hygiene/health in the first instance. 

Why would they be?  If the manufacturer has no interest in hygiene (as they're likely only ever going to have to take back products that are faulty) then there is no reason for them to seal them for that purpose.  That doesn't mean that the thing they're sealed in cannot offer that hygiene protection.

It's very clear though that you've lost.  And as I've got bored or repeating the same thing over and over and you ignoring it, I'll let Parking_Eyerate continue to rip you to shreds.

Toodle pip

That part in bold sums up what's wrong with internet forums. Too many people posting to try and "win" at the internet rather than concede they might be advising on matters outwith their depth. 

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

The questions not answered by paragraph 49 were:

a)      What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of [Directive 2011/83] exists?

and

(b)      Does the information that the trader has to give pursuant to Article 6(1)(k) of [Directive 2011/83] before the contract becomes binding have to be provided in such a way that the consumer is informed, with specific reference to the article to be purchased (here a mattress) and the seal that is applied, that he will lose the right of withdrawal if he removes the seal?’

Where is question 2 a limited to the appearance of packaging? It simply says what requirements must be satisfied, it does not ask ‘excluding whether or not the packaging needs to have a specified purpose, what requirements does it need to satisfy’. I previously assumed you weren’t deliberately trying to twist things just to serve your purpose but on reading your most recent post I am not sure if I was right in that assumption.

Please point out to me where I questioned the authority of the CJEU judgement. I haven’t, I have simply questioned your interpretation of it.

I don’t see where I have challenged you to prove your views, I have disagreed with your interpretation of the CJEU judgement and I have provided reasons why I disagree with it.

Yes, the AG is senior, I don’t think we disagree on that but, like everyone else, his views can still be questioned.

I do disagree that the CJEU decision covers the purpose for which goods must be sealed and I hope we can just move on and accept we disagree.

Regarding the AG’s opinion, I actually think that the intended purpose of the packaging is possibly a complete red herring. Looking at the AG’s conclusion on the point in paragraph 49

49.

Therefore, in the event that the Court rules on point (a) of the second question referred for a preliminary ruling, I believe that the answer should be that goods packed in packaging that cannot be resealed so that there is no doubt that the goods in question could have been tested or tried on by the purchaser, without, however, a requirement that the packaging contains specific information expressly indicating that there is a seal which, if broken, will affect the consumers right of withdrawal, constitutes ‘sealed’ goods within the meaning of Article 16(e) of Directive 2011/83. In my opinion, such an express indication should, by contrast, be given in the context of the pre-contractual information provided for in Article 6(1) of that directive which I shall now consider. I think the pertinent question would be whether or not the packaging served to prevent the item being resealed without leaving any doubt that they had been tested or tried on. Following on from this, I think it is possible that if the goods were found to be goods for which health/hygiene considerations apply then the primary ‘intent’ of the packaging would not be relevant. Regarding your last question, I refer you back to a previous post. I think seals/packaging can reasonably serve multiple purposes and the primary purpose of packaging may be somewhat subjective and irrelevant. For example, another purpose of blister packs may be dosage monitoring and the primary purpose of the blister pack could be different for different products.

I didn't say it was limited to appearance. I said appearance/characteristics. 

To which the AG said:

40.      In point (a) of its second question, the referring court asks, in essence, what characteristics must the packaging of goods have for it to be considered ‘sealed’ within the meaning of Article 16(e) of Directive 2011/83, in the event that the goods in question fall within the category of goods ‘which are not suitable for return due to health protection or hygiene reasons’, on which the exception from the right of withdrawal provided for in that provision is based. (32) In accordance with the reasons for its decision, that court asks, more specifically, whether goods of that type must be packaged in such a way that ‘not only [is it] necessary to ensure that the unsealing cannot be reversed, but in addition it [is] clear from the circumstances (for example by printing on the word “seal”) that this is not mere transportation packaging, but rather a seal for health protection and hygiene reasons’.
41.      In my opinion, the question referred and the reasons therefor raise two different issues, as reflected in the observations submitted to the Court. (33) The referring court raises the question, on the one hand, of the physical properties required for packaging to be considered ‘sealed’ within the meaning of Article 16(e) of Directive 2011/83 and, on the other, the possible need to include on that packaging a distinctive sign drawing the consumer’s attention to the fact that such a seal exists.

As per paragraph 49, that is the conclusion. The basis for the conclusion is set out in the preceding paragraphs. That is the way judgements are structured. The parties/matter before the court, which points of law are being considered, it will then go on to consider each of those points of law in detail before then examining how those principles apply to the case before them, before offering a conclusion. 

But a conclusion, without the corresponding basis for arriving at that conclusion, is worthless. 

As for parts I've bolded from your post...what he is saying is that if packaging is resealable (without it being apparant the goods have been compromised) then that seal does not offer any guarantee to the health/hygiene of the item and, accordingly, cannot be deprived of the hygiene/health protection when the seal is opened. What he said in the preceding paragraphs explains the basis for his conslusion. Particularly paragraphs 44-45 (purpose is another word for intent)

44.      In that regard, I consider, as put forward, in essence, by slewo, (39) the Belgian Government (40) and the Commission, that it is strictly necessary to take account of the purpose that the ‘seals’ may be expected to serve within the meaning of Article 16(e). The aim of that provision is, in my opinion, to exclude from the right of withdrawal all goods which must be sealed due to health protection and hygiene reasons, and thus to prevent the consumer from returning such goods to the trader, because once those goods have been removed from their protective packaging, they suffer irremediable loss of value in terms of guaranteeing health or hygiene, with the result that they cannot be resold. (41)
45.      I therefore take the view that for a protective coating to be considered ‘sealed’ within the meaning of the provision, it must reliably guarantee the cleanliness of the product it contains. That criterion presupposes that the packaging is strong enough to protect it and that it cannot be opened without visibly damaging it, so that it is evident if the article in question has been tested or tried on by the consumer. By way of an example, a sealed plastic or foil film which would thus be impossible to return in its original condition if opened voluntarily would satisfy those conditions.

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

I think you are confused by my post but, to be fair, I think it is maybe because I mentioned paragraph 49 twice in the context of both the CJEU decision and the AG opinion.

My first reference to paragraph 49 was to the CJEU decision in which they said they didn’t need to answer question 2. When I referred to that in a previous post you responded saying “ Paragraph 49 was relating to the second question of what the packaging should look like (not the purpose of the packaging)”. I then said in my previous post that I couldn’t see where question 2 was limited to appearance (which I think is a reasonable interpretation of ‘look like’) and now you have just “I didn’t say it was limited to appearance. I said appearance/characteristics”. Well, now I don’t know why you think you didn’t say it was limited to appearance and you said it was appearance/characteristics.

Regarding your last point and the crux of the matter, as you say the AG has expressed a view that the provision in question relates to “goods which must be sealed due to health protection and hygiene reasons”. In my view that is still just a reference to the goods, it is the nature of the goods that is determinative and nothing more. Firstly, I don’t think it makes sense that a legal provision would try to define tangible goods by the intent by which they were packaged. If you try reading the clause without trying to separate out the concept of the purpose of packaging as a separate feature then it makes logical sense. It is perhaps not an ideal way to describe them but I can’t see that he is talking about anything other than goods for which hygiene is a critical characteristic. Put another way, I think it is maybe a difference of opinion regarding where the stressing of “must” sits. I think the stress is that ‘goods must be sealed’, whereas you seem to think it is (paraphrasing) ‘the seal must be for hygiene purposes’. I don’t know if it’s because the AG’s first language isn’t English but I genuinely don’t think he meant that clause to have the meaning you have ascribed to it.
For completeness, I also personally think my interpretation is borne out by the consideration that he also expressed an opinion that the packaging did not have to have any markings to show that it was a hygiene seal or intended to be a hygiene seal etc.
If the AG meant the purpose of the packaging to be a pre-requisite for the exemption applying, then how do you think that legal requirement would be tested if markings are not required?

Manxman_in_exile

unholyangel said:

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

(I've only skimmed the replies following my last post - I'll deal with them later - but the above post immediately caught my eye).

----------------------------------------------------------------------

Aren't you shifting your ground and backtracking from your original position in saying that? 

Contrary to "Nowhere have I ever said... " your first two posts in this very thread specifically stated that the items had to be sealed for health or hygiene reasons.  I queried whether the regulation actually said that and, so far as I can recall, you seem to have persistently defended the position that the law does say that the reason for sealing has to be for health and hygiene purposes.

To now say "But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern" is a completely different proposition from the one you were originally defending.

You now seem to have shifted to saying that it is not so much the reason for the seal that is important - rather it is how effective it is as a seal for protecting health and hygiene.

That is a completely different point and has nothing to do with my original question, which was about the reason for the seal, not about whether or not it was effective for health and hygiene.

I can easily envisage a seal that is effective for the purpose of protecting health and hygiene, but which was not applied for H&H reasons in the first place. 

Are you now agreeing that the reason (or reasons) for applying the seal is irrelevant in the context of the returns exemption, (which is what I was arguing) and the real question is whether the seal is effective for health and hygiene purposes?

Manxman_in_exile

unholyangel said:

...As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

Assuming I am one of the posters who you think has elected not to answer your question, let me do so now (although I think one of the situations zzyzx1221 suggested earlier answered your very question before you even asked it - but you dismissed his example out of hand).

When you originally asked the question you did not restrict it to sealing for "posting", so lets ignore that qualification for now and just talk about "sealing" and "sealed".

Let's assume a manufacturer has two product lines - one of them (A) is not of a nature that it is exempt from the right to return for H&H purposes or to maintain hygiene, but the second (B) is of such a nature that it is exempt.

Both A and B are hermetically sealed to identical levels of security for the reason of keeping them clean and intact during transportation to distributors and retailers.

Obviously A has not been sealed for reasons of H&H because those reasons do not apply to A.  But B has been sealed for the identical reason that A has, so B cannot have been sealed for H&H reasons either.

But the fact that B has not been sealed for H&H reasons does not necessarily mean that it's hermetic seal is not effective for preserving the H&H "integrity" of B.  Indeed, I cannot think of anything more effective in that regard than an hermetically sealed package.

Thus B has not been sealed for H&H reasons, but the seal may still be effective for maintaining H&H and thus be exempt from the right of return.

I think you are committing two errors of reasoning in assuming that if a product cannot be returned for H&H reasons and it has to be sealed to maintain its H&H "integrity", then (1) if it is sealed, then it must have been for that reason and (2) if it is sealed for reasons other than H&H, then that sealing cannot be effective for maintaing the products H&H "integrity".

I don't think either of those conclusions follows and neither does the european judgment you cite.  (All it decides is that the exemption does not apply to mattresses).

Regarding the type of sealing (eg twisty wires) and what is effective, you tell me.  I asked what sealed meant for this purposes at the beginning of this thread.  A bit of sellotape?  A couple of staples?

Now can you answer my original question asked about ten pages ago:  where in the regulations does it say that the reason for sealing a product that is exempt has to be because of H&H reasons?

unholyangel

Manxman_in_exile said:

unholyangel said:

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

(I've only skimmed the replies following my last post - I'll deal with them later - but the above post immediately caught my eye).

----------------------------------------------------------------------

Aren't you shifting your ground and backtracking from your original position in saying that? 

Contrary to "Nowhere have I ever said... " your first two posts in this very thread specifically stated that the items had to be sealed for health or hygiene reasons.  I queried whether the regulation actually said that and, so far as I can recall, you seem to have persistently defended the position that the law does say that the reason for sealing has to be for health and hygiene purposes.

To now say "But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern" is a completely different proposition from the one you were originally defending.

You now seem to have shifted to saying that it is not so much the reason for the seal that is important - rather it is how effective it is as a seal for protecting health and hygiene.

That is a completely different point and has nothing to do with my original question, which was about the reason for the seal, not about whether or not it was effective for health and hygiene.

I can easily envisage a seal that is effective for the purpose of protecting health and hygiene, but which was not applied for H&H reasons in the first place. 

Are you now agreeing that the reason (or reasons) for applying the seal is irrelevant in the context of the returns exemption, (which is what I was arguing) and the real question is whether the seal is effective for health and hygiene purposes?

No, my position has not changed. If you design/choose packaging with dual purpose, and one of those purposes is H&H, then it is still for H&H reasons (even if there are also other reasons). For it to be a backtrack, I would have needed to say that the only purpose taken into consideration for it's packaging is H&H. 

It's a bit like classification of vehicles for tax purposes. If the vehicle is primarily suited (aka constructed/designed for that purpose) to carrying goods, it's a van. The van may also be constructed/designed to carry passengers, but as long as it is "primarly suited" to carrying goods, it's still a van for tax purposes. 

unholyangel

Manxman_in_exile said:

unholyangel said:

...As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

Assuming I am one of the posters who you think has elected not to answer your question, let me do so now (although I think one of the situations zzyzx1221 suggested earlier answered your very question before you even asked it - but you dismissed his example out of hand).

When you originally asked the question you did not restrict it to sealing for "posting", so lets ignore that qualification for now and just talk about "sealing" and "sealed".

Let's assume a manufacturer has two product lines - one of them (A) is not of a nature that it is exempt from the right to return for H&H purposes or to maintain hygiene, but the second (B) is of such a nature that it is exempt.

Both A and B are hermetically sealed to identical levels of security for the reason of keeping them clean and intact during transportation to distributors and retailers.

Obviously A has not been sealed for reasons of H&H because those reasons do not apply to A.  But B has been sealed for the identical reason that A has, so B cannot have been sealed for H&H reasons either.

But the fact that B has not been sealed for H&H reasons does not necessarily mean that it's hermetic seal is not effective for preserving the H&H "integrity" of B.  Indeed, I cannot think of anything more effective in that regard than an hermetically sealed package.

Thus B has not been sealed for H&H reasons, but the seal may still be effective for maintaining H&H and thus be exempt from the right of return.

I think you are committing two errors of reasoning in assuming that if a product cannot be returned for H&H reasons and it has to be sealed to maintain its H&H "integrity", then (1) if it is sealed, then it must have been for that reason and (2) if it is sealed for reasons other than H&H, then that sealing cannot be effective for maintaing the products H&H "integrity".

I don't think either of those conclusions follows and neither does the european judgment you cite.  (All it decides is that the exemption does not apply to mattresses).

Regarding the type of sealing (eg twisty wires) and what is effective, you tell me.  I asked what sealed meant for this purposes at the beginning of this thread.  A bit of sellotape?  A couple of staples?

Now can you answer my original question asked about ten pages ago:  where in the regulations does it say that the reason for sealing a product that is exempt has to be because of H&H reasons?

I didn't restrict it for posting reasons at all (first or second time). The first time I was asking for an example, when none were forthcoming, I made up my own to try and tease out a response. 

In the answer you've given.....why would B only need to be kept clean during transportation, if they are not suitable to be sold without a H&H seal? The goods themselves need to be a type that need to be sealed for H&H reasons because once broken, they are worthless and cannot be resold.. Such as blister packs of ibuprofen/aspirin etc or food items. 
 
This is what I've been trying to explain all along and also why I kept asking you to give examples, so I could get a better idea of your understanding of it to see what might help clear it up. Although I'm not sure this last ditch will make it any clearer than my previous posts, I live in hope. 

Parking_Eyerate

unholyangel said:

Manxman_in_exile said:

unholyangel said:

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

(I've only skimmed the replies following my last post - I'll deal with them later - but the above post immediately caught my eye).

----------------------------------------------------------------------

Aren't you shifting your ground and backtracking from your original position in saying that? 

Contrary to "Nowhere have I ever said... " your first two posts in this very thread specifically stated that the items had to be sealed for health or hygiene reasons.  I queried whether the regulation actually said that and, so far as I can recall, you seem to have persistently defended the position that the law does say that the reason for sealing has to be for health and hygiene purposes.

To now say "But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern" is a completely different proposition from the one you were originally defending.

You now seem to have shifted to saying that it is not so much the reason for the seal that is important - rather it is how effective it is as a seal for protecting health and hygiene.

That is a completely different point and has nothing to do with my original question, which was about the reason for the seal, not about whether or not it was effective for health and hygiene.

I can easily envisage a seal that is effective for the purpose of protecting health and hygiene, but which was not applied for H&H reasons in the first place. 

Are you now agreeing that the reason (or reasons) for applying the seal is irrelevant in the context of the returns exemption, (which is what I was arguing) and the real question is whether the seal is effective for health and hygiene purposes?

No, my position has not changed. If you design/choose packaging with dual purpose, and one of those purposes is H&H, then it is still for H&H reasons (even if there are also other reasons). For it to be a backtrack, I would have needed to say that the only purpose taken into consideration for it's packaging is H&H. 

It's a bit like classification of vehicles for tax purposes. If the vehicle is primarily suited (aka constructed/designed for that purpose) to carrying goods, it's a van. The van may also be constructed/designed to carry passengers, but as long as it is "primarly suited" to carrying goods, it's still a van for tax purposes. 

I apologise in advance for the length of this post but I worry that you might (unintentionally) mislead readers with this continued proposition of yours. So let’s try this; why do you think the purpose of the packaging matters at all? What would such a requirement actually achieve/deter in practical terms?

If a product is packaged in such a way that irreversibly shows if it has been opened or not, then it will still only be subject to the exemption if it is a product for which health/hygiene is a valid concern.

If a product is one for which health/hygiene is a valid concern but the packaging may nevertheless be reinstated by the consumer (e.g. your mattress ribbon notion), then there isn’t a returns issue because the consumer could (if they were that way inclined) put the packaging back together, send it back and say no more about. It may be a hygiene concern, yes, but that is then for the retailer to worry about. (If the OP could have put the unused vape tank back in a box and sent it back I doubt this thread would exist.)

So, for packaging/sealing which does show if a product has been tampered with, what actually matters in practical terms? To me, the only logical answer is whether the product is something for which health/hygiene is an issue or not. If it isn’t a product for which health/hygiene is considered relevant then the packaging is a non-issue anyway. If it is a product for which hygiene etc. matters then, so long as the packaging is able to show if the product has been opened or not, why would the contemplated purpose of packaging/sealing matter in any way? What would any such ‘intent test’ add? How would you even measure it?

One possible (hypothetical) example that occurs to me is pens like these:

https://www.ryman.co.uk/bic-4-colour-medium-blister-pack-of-2-1-free-fashion-pen

What if, before COVID, the manufacturer chose the packaging because it kept the multipack together, stopped the nibs being extended and stopped the pens getting scratched. Following COVID the retailer starts worrying that pens could be a hygiene risk because people handle them and some people put them in their mouths. Someone then buys this pack online, breaks the blister pack but realises after opening that they aren’t all ‘fashion pens’ as they had hoped so decides to return them. The blister pack functions to show that the pens have been opened and it can’t be closed again. The retailer refuses the return because of hygiene concerns (since information isn’t the point of contention let’s assume that the requisite information was provided as needed).

Should it matter at all that the packaging wasn’t chosen for hygiene reasons, or should the (only) pertinent issue be whether any hygiene concerns associated with pens are severe enough post-COVID that the pens can’t be re-sold once opened? If you maintain that the purpose(s) of the packaging must still matter, can you clearly explain why? Further, how would you set about trying to prove that the manufacturer hadn’t thought about hygiene when choosing to use blister packs in the first place? (My view, as I’m sure you can guess, is that the purpose of the packaging wouldn’t and shouldn’t matter and the longer this discussion continues the more I think that any reference to the intent of packaging in the legislation was omitted deliberately.)

Bringing it back to vape products, even if it were a requirement of the regulation how, in practical terms, could the OP set about arguing that the purpose(s) of the cellophane packaging around the vape tank didn’t include hygiene protection? I think you could only realistically do that by arguing that vape tanks are not products for which health/hygiene is a significant concern. So, again, to all intents and purposes I consider it would nevertheless come back to the nature of the goods/product....

OP - it is apparent that some people see things quite differently but ultimately it is, of course, only for you to decide how you might want to approach the retailer (in case you are still thinking of getting back to them again). Personally, I think any argument regarding the ‘intent’ of packaging is a complete non-starter and the only relevant question is whether there may be serious (enough) hygiene concerns related to re-using vape tanks.

Butter_Crunch

Parking_Eyerate said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

(I've only skimmed the replies following my last post - I'll deal with them later - but the above post immediately caught my eye).

----------------------------------------------------------------------

Aren't you shifting your ground and backtracking from your original position in saying that? 

Contrary to "Nowhere have I ever said... " your first two posts in this very thread specifically stated that the items had to be sealed for health or hygiene reasons.  I queried whether the regulation actually said that and, so far as I can recall, you seem to have persistently defended the position that the law does say that the reason for sealing has to be for health and hygiene purposes.

To now say "But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern" is a completely different proposition from the one you were originally defending.

You now seem to have shifted to saying that it is not so much the reason for the seal that is important - rather it is how effective it is as a seal for protecting health and hygiene.

That is a completely different point and has nothing to do with my original question, which was about the reason for the seal, not about whether or not it was effective for health and hygiene.

I can easily envisage a seal that is effective for the purpose of protecting health and hygiene, but which was not applied for H&H reasons in the first place. 

Are you now agreeing that the reason (or reasons) for applying the seal is irrelevant in the context of the returns exemption, (which is what I was arguing) and the real question is whether the seal is effective for health and hygiene purposes?

No, my position has not changed. If you design/choose packaging with dual purpose, and one of those purposes is H&H, then it is still for H&H reasons (even if there are also other reasons). For it to be a backtrack, I would have needed to say that the only purpose taken into consideration for it's packaging is H&H. 

It's a bit like classification of vehicles for tax purposes. If the vehicle is primarily suited (aka constructed/designed for that purpose) to carrying goods, it's a van. The van may also be constructed/designed to carry passengers, but as long as it is "primarly suited" to carrying goods, it's still a van for tax purposes. 

I apologise in advance for the length of this post but I worry that you might (unintentionally) mislead readers with this continued proposition of yours. So let’s try this; why do you think the purpose of the packaging matters at all? What would such a requirement actually achieve/deter in practical terms?

If a product is packaged in such a way that irreversibly shows if it has been opened or not, then it will still only be subject to the exemption if it is a product for which health/hygiene is a valid concern.

If a product is one for which health/hygiene is a valid concern but the packaging may nevertheless be reinstated by the consumer (e.g. your mattress ribbon notion), then there isn’t a returns issue because the consumer could (if they were that way inclined) put the packaging back together, send it back and say no more about. It may be a hygiene concern, yes, but that is then for the retailer to worry about. (If the OP could have put the unused vape tank back in a box and sent it back I doubt this thread would exist.)

So, for packaging/sealing which does show if a product has been tampered with, what actually matters in practical terms? To me, the only logical answer is whether the product is something for which health/hygiene is an issue or not. If it isn’t a product for which health/hygiene is considered relevant then the packaging is a non-issue anyway. If it is a product for which hygiene etc. matters then, so long as the packaging is able to show if the product has been opened or not, why would the contemplated purpose of packaging/sealing matter in any way? What would any such ‘intent test’ add? How would you even measure it?

One possible (hypothetical) example that occurs to me is pens like these:

https://www.ryman.co.uk/bic-4-colour-medium-blister-pack-of-2-1-free-fashion-pen

What if, before COVID, the manufacturer chose the packaging because it kept the multipack together, stopped the nibs being extended and stopped the pens getting scratched. Following COVID the retailer starts worrying that pens could be a hygiene risk because people handle them and some people put them in their mouths. Someone then buys this pack online, breaks the blister pack but realises after opening that they aren’t all ‘fashion pens’ as they had hoped so decides to return them. The blister pack functions to show that the pens have been opened and it can’t be closed again. The retailer refuses the return because of hygiene concerns (since information isn’t the point of contention let’s assume that the requisite information was provided as needed).

Should it matter at all that the packaging wasn’t chosen for hygiene reasons, or should the (only) pertinent issue be whether any hygiene concerns associated with pens are severe enough post-COVID that the pens can’t be re-sold once opened? If you maintain that the purpose(s) of the packaging must still matter, can you clearly explain why? Further, how would you set about trying to prove that the manufacturer hadn’t thought about hygiene when choosing to use blister packs in the first place? (My view, as I’m sure you can guess, is that the purpose of the packaging wouldn’t and shouldn’t matter and the longer this discussion continues the more I think that any reference to the intent of packaging in the legislation was omitted deliberately.)

Bringing it back to vape products, even if it were a requirement of the regulation how, in practical terms, could the OP set about arguing that the purpose(s) of the cellophane packaging around the vape tank didn’t include hygiene protection? I think you could only realistically do that by arguing that vape tanks are not products for which health/hygiene is a significant concern. So, again, to all intents and purposes I consider it would nevertheless come back to the nature of the goods/product....

OP - it is apparent that some people see things quite differently but ultimately it is, of course, only for you to decide how you might want to approach the retailer (in case you are still thinking of getting back to them again). Personally, I think any argument regarding the ‘intent’ of packaging is a complete non-starter and the only relevant question is whether there may be serious (enough) hygiene concerns related to re-using vape tanks.

It’s highly unlikely that I’ll get a refund. For the sake of £20, it’s not worth pursuing. I’ve just been unfortunate in that my tank was cellophane wrapped. Other items I’ve received haven’t been sealed, including refill pods. It’s just the carte blanche approach they’ve taken, that’s goaded me. 

unholyangel

Parking_Eyerate said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

So must be sealed due to health & hygiene reasons & not enough that it has a seal, the seal actually has to offer hygiene/health value. 

But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern - that you can't just tie a piece of string around something and claim removing the string has somehow deprived the goods of health/hygiene protection. 

(I've only skimmed the replies following my last post - I'll deal with them later - but the above post immediately caught my eye).

----------------------------------------------------------------------

Aren't you shifting your ground and backtracking from your original position in saying that? 

Contrary to "Nowhere have I ever said... " your first two posts in this very thread specifically stated that the items had to be sealed for health or hygiene reasons.  I queried whether the regulation actually said that and, so far as I can recall, you seem to have persistently defended the position that the law does say that the reason for sealing has to be for health and hygiene purposes.

To now say "But nowhere have I ever said that H&H needs to be the sole or primary reason for it's packaging design. Merely that, whatever form the seal takes, it has to actually protect against the hygiene/health concern" is a completely different proposition from the one you were originally defending.

You now seem to have shifted to saying that it is not so much the reason for the seal that is important - rather it is how effective it is as a seal for protecting health and hygiene.

That is a completely different point and has nothing to do with my original question, which was about the reason for the seal, not about whether or not it was effective for health and hygiene.

I can easily envisage a seal that is effective for the purpose of protecting health and hygiene, but which was not applied for H&H reasons in the first place. 

Are you now agreeing that the reason (or reasons) for applying the seal is irrelevant in the context of the returns exemption, (which is what I was arguing) and the real question is whether the seal is effective for health and hygiene purposes?

No, my position has not changed. If you design/choose packaging with dual purpose, and one of those purposes is H&H, then it is still for H&H reasons (even if there are also other reasons). For it to be a backtrack, I would have needed to say that the only purpose taken into consideration for it's packaging is H&H. 

It's a bit like classification of vehicles for tax purposes. If the vehicle is primarily suited (aka constructed/designed for that purpose) to carrying goods, it's a van. The van may also be constructed/designed to carry passengers, but as long as it is "primarly suited" to carrying goods, it's still a van for tax purposes. 

I apologise in advance for the length of this post but I worry that you might (unintentionally) mislead readers with this continued proposition of yours. So let’s try this; why do you think the purpose of the packaging matters at all? What would such a requirement actually achieve/deter in practical terms?

If a product is packaged in such a way that irreversibly shows if it has been opened or not, then it will still only be subject to the exemption if it is a product for which health/hygiene is a valid concern.

If a product is one for which health/hygiene is a valid concern but the packaging may nevertheless be reinstated by the consumer (e.g. your mattress ribbon notion), then there isn’t a returns issue because the consumer could (if they were that way inclined) put the packaging back together, send it back and say no more about. It may be a hygiene concern, yes, but that is then for the retailer to worry about. (If the OP could have put the unused vape tank back in a box and sent it back I doubt this thread would exist.)

So, for packaging/sealing which does show if a product has been tampered with, what actually matters in practical terms? To me, the only logical answer is whether the product is something for which health/hygiene is an issue or not. If it isn’t a product for which health/hygiene is considered relevant then the packaging is a non-issue anyway. If it is a product for which hygiene etc. matters then, so long as the packaging is able to show if the product has been opened or not, why would the contemplated purpose of packaging/sealing matter in any way? What would any such ‘intent test’ add? How would you even measure it?

One possible (hypothetical) example that occurs to me is pens like these:

https://www.ryman.co.uk/bic-4-colour-medium-blister-pack-of-2-1-free-fashion-pen

What if, before COVID, the manufacturer chose the packaging because it kept the multipack together, stopped the nibs being extended and stopped the pens getting scratched. Following COVID the retailer starts worrying that pens could be a hygiene risk because people handle them and some people put them in their mouths. Someone then buys this pack online, breaks the blister pack but realises after opening that they aren’t all ‘fashion pens’ as they had hoped so decides to return them. The blister pack functions to show that the pens have been opened and it can’t be closed again. The retailer refuses the return because of hygiene concerns (since information isn’t the point of contention let’s assume that the requisite information was provided as needed).

Should it matter at all that the packaging wasn’t chosen for hygiene reasons, or should the (only) pertinent issue be whether any hygiene concerns associated with pens are severe enough post-COVID that the pens can’t be re-sold once opened? If you maintain that the purpose(s) of the packaging must still matter, can you clearly explain why? Further, how would you set about trying to prove that the manufacturer hadn’t thought about hygiene when choosing to use blister packs in the first place? (My view, as I’m sure you can guess, is that the purpose of the packaging wouldn’t and shouldn’t matter and the longer this discussion continues the more I think that any reference to the intent of packaging in the legislation was omitted deliberately.)

Bringing it back to vape products, even if it were a requirement of the regulation how, in practical terms, could the OP set about arguing that the purpose(s) of the cellophane packaging around the vape tank didn’t include hygiene protection? I think you could only realistically do that by arguing that vape tanks are not products for which health/hygiene is a significant concern. So, again, to all intents and purposes I consider it would nevertheless come back to the nature of the goods/product....

OP - it is apparent that some people see things quite differently but ultimately it is, of course, only for you to decide how you might want to approach the retailer (in case you are still thinking of getting back to them again). Personally, I think any argument regarding the ‘intent’ of packaging is a complete non-starter and the only relevant question is whether there may be serious (enough) hygiene concerns related to re-using vape tanks.

I've not read the waffle but the purpose matters because the goods need to be of a type that require sealing for hygiene/health reasons!

So as I said, ibuprofen requires sold in blister packs. Without that seal, it wouldn't be able to be sold because of the health risk it would pose. 

In the simplest sense, the exemption is for sealed goods, which are unsuitable for return once opened (due to health/hygiene protection). It is not an exemption for all goods that cause a h&h concern, if the goods are sealed.