Consumer Rights vs Vendor T & C’s

zzyzx1221

Butter_Crunch said:

Lots of interesting comments & apologies for not quoting them all. Maybe it’s part of some other regulation, like the manufacture of products, like medicines, where it stipulates that they ‘have’ to be sealed for health/hygiene purpose. Most items you buy are ‘sealed’ in some way. Probably to give you confidence it’s new & to stop some scallywag opening the box & nicking some/all of what’s inside. if there was a list somewhere of items that have to be sealed as part of the manufacturing process, as a mandatory requirement for health/hygiene purposes, that would be a starting point. It would then be down to shops deciding what can & can’t be opened due to health/hygiene & putting it in their T & C’s?  

Is that a regulation with making medicines though?  I'm not sure it is.   I imagine most medicines are sealed to prevent them from reacting with the air and degrading, for example.

I suspect that is the case for the vast majority of "sealed" packaging, it has little to do with hygiene and is more to keep the product in good condition.  It's the retailers who then will decide if it's a product that they don't really want back "for hygiene reasons" (which I suspect its more about customers being uncomfortable with someone else having potentially used certain products than any genuine hygiene reason.)

Butter_Crunch

zzyzx1221 said:

Butter_Crunch said:

Lots of interesting comments & apologies for not quoting them all. Maybe it’s part of some other regulation, like the manufacture of products, like medicines, where it stipulates that they ‘have’ to be sealed for health/hygiene purpose. Most items you buy are ‘sealed’ in some way. Probably to give you confidence it’s new & to stop some scallywag opening the box & nicking some/all of what’s inside. if there was a list somewhere of items that have to be sealed as part of the manufacturing process, as a mandatory requirement for health/hygiene purposes, that would be a starting point. It would then be down to shops deciding what can & can’t be opened due to health/hygiene & putting it in their T & C’s?  

Is that a regulation with making medicines though?  I'm not sure it is.   I imagine most medicines are sealed to prevent them from reacting with the air and degrading, for example.

I suspect that is the case for the vast majority of "sealed" packaging, it has little to do with hygiene and is more to keep the product in good condition.  It's the retailers who then will decide if it's a product that they don't really want back "for hygiene reasons" (which I suspect its more about customers being uncomfortable with someone else having potentially used certain products than any genuine hygiene reason.)

The CCRs state products that are sealed for hygiene/health purposes. It’s my guess that, certain products that could have life threatening consequences if tampered with, have to be manufactured as a sealed/tamperproof product, i.e, medicines. Things like food would come under hygiene. It can’t be mandatory though to have to seal food. You have cakes/bread/fruit/vegetables in open baskets in supermarkets. Going back to my original post, the supplier might be right in refusing the return due to hygiene as they’ve said so in their T & Cs. What I don’t think they’re right in saying, is why the item was sealed in the first place. It wasn’t sealed due to hygiene/health, more like part of a normal manufacturing process. 

zzyzx1221

Butter_Crunch said:

zzyzx1221 said:

Butter_Crunch said:

Lots of interesting comments & apologies for not quoting them all. Maybe it’s part of some other regulation, like the manufacture of products, like medicines, where it stipulates that they ‘have’ to be sealed for health/hygiene purpose. Most items you buy are ‘sealed’ in some way. Probably to give you confidence it’s new & to stop some scallywag opening the box & nicking some/all of what’s inside. if there was a list somewhere of items that have to be sealed as part of the manufacturing process, as a mandatory requirement for health/hygiene purposes, that would be a starting point. It would then be down to shops deciding what can & can’t be opened due to health/hygiene & putting it in their T & C’s?  

Is that a regulation with making medicines though?  I'm not sure it is.   I imagine most medicines are sealed to prevent them from reacting with the air and degrading, for example.

I suspect that is the case for the vast majority of "sealed" packaging, it has little to do with hygiene and is more to keep the product in good condition.  It's the retailers who then will decide if it's a product that they don't really want back "for hygiene reasons" (which I suspect its more about customers being uncomfortable with someone else having potentially used certain products than any genuine hygiene reason.)

The CCRs state products that are sealed for hygiene/health purposes. It’s my guess that, certain products that could have life threatening consequences if tampered with, have to be manufactured as a sealed/tamperproof product, i.e, medicines. Things like food would come under hygiene. It can’t be mandatory though to have to seal food. You have cakes/bread/fruit/vegetables in open baskets in supermarkets. Going back to my original post, the supplier might be right in refusing the return due to hygiene as they’ve said so in their T & Cs. What I don’t think they’re right in saying, is why the item was sealed in the first place. It wasn’t sealed due to hygiene/health, more like part of a normal manufacturing process. 

Any product could have life-threatening consequences if it's tampered with.  It all depends on how it's tampered with I suppose.  Stick a bit of Novichok on a TV remote and someone is going to have a bad day...

I don't believe anything has to be sealed for hygiene reasons, but clearly, it is in a retailers interest to cite "hygiene reasons" whenever it can get away with it as it makes it that little bit harder for a consumer to return the product. Obviously, there are limits to what a retailer can reasonably refuse returns for on hygiene reasons but I suspect that would ultimately be up to a court to decide.

I don't believe that it matters one jot why the item was sealed in the first place as far as the CRA goes and I suspect that plenty of things that are "sealed for hygiene reasons" were not sealed for that purpose by the manufacturer.  That it was sealed, and that it is a product that could reasonably be refused a return for hygiene reasons appears to be sufficient.

Butter_Crunch

zzyzx1221 said:

Butter_Crunch said:

zzyzx1221 said:

Butter_Crunch said:

Lots of interesting comments & apologies for not quoting them all. Maybe it’s part of some other regulation, like the manufacture of products, like medicines, where it stipulates that they ‘have’ to be sealed for health/hygiene purpose. Most items you buy are ‘sealed’ in some way. Probably to give you confidence it’s new & to stop some scallywag opening the box & nicking some/all of what’s inside. if there was a list somewhere of items that have to be sealed as part of the manufacturing process, as a mandatory requirement for health/hygiene purposes, that would be a starting point. It would then be down to shops deciding what can & can’t be opened due to health/hygiene & putting it in their T & C’s?  

Is that a regulation with making medicines though?  I'm not sure it is.   I imagine most medicines are sealed to prevent them from reacting with the air and degrading, for example.

I suspect that is the case for the vast majority of "sealed" packaging, it has little to do with hygiene and is more to keep the product in good condition.  It's the retailers who then will decide if it's a product that they don't really want back "for hygiene reasons" (which I suspect its more about customers being uncomfortable with someone else having potentially used certain products than any genuine hygiene reason.)

The CCRs state products that are sealed for hygiene/health purposes. It’s my guess that, certain products that could have life threatening consequences if tampered with, have to be manufactured as a sealed/tamperproof product, i.e, medicines. Things like food would come under hygiene. It can’t be mandatory though to have to seal food. You have cakes/bread/fruit/vegetables in open baskets in supermarkets. Going back to my original post, the supplier might be right in refusing the return due to hygiene as they’ve said so in their T & Cs. What I don’t think they’re right in saying, is why the item was sealed in the first place. It wasn’t sealed due to hygiene/health, more like part of a normal manufacturing process. 

Any product could have life-threatening consequences if it's tampered with.  It all depends on how it's tampered with I suppose.  Stick a bit of Novichok on a TV remote and someone is going to have a bad day...

I don't believe anything has to be sealed for hygiene reasons, but clearly, it is in a retailers interest to cite "hygiene reasons" whenever it can get away with it as it makes it that little bit harder for a consumer to return the product. Obviously, there are limits to what a retailer can reasonably refuse returns for on hygiene reasons but I suspect that would ultimately be up to a court to decide.

I don't believe that it matters one jot why the item was sealed in the first place as far as the CRA goes and I suspect that plenty of things that are "sealed for hygiene reasons" were not sealed for that purpose by the manufacturer.  That it was sealed, and that it is a product that could reasonably be refused a return for hygiene reasons appears to be sufficient.

I guess we could go on for day’s speculating what, or if anything is mandated. Yes, your right, anything could be tampered with & it’d be up to the individual or shop assistant to spot it. The bottom line is, the store I bought my tank off, has a pretty shoddy customer service to refuse my return, carte blanche. They would see on inspection, that the tank is unused. I was willing to pay the re-stocking fee. They could then sell it on as a customer return, which a lot of shops do, including vape shops. 

zzyzx1221

Butter_Crunch said:

zzyzx1221 said:

Butter_Crunch said:

zzyzx1221 said:

Butter_Crunch said:

Lots of interesting comments & apologies for not quoting them all. Maybe it’s part of some other regulation, like the manufacture of products, like medicines, where it stipulates that they ‘have’ to be sealed for health/hygiene purpose. Most items you buy are ‘sealed’ in some way. Probably to give you confidence it’s new & to stop some scallywag opening the box & nicking some/all of what’s inside. if there was a list somewhere of items that have to be sealed as part of the manufacturing process, as a mandatory requirement for health/hygiene purposes, that would be a starting point. It would then be down to shops deciding what can & can’t be opened due to health/hygiene & putting it in their T & C’s?  

Is that a regulation with making medicines though?  I'm not sure it is.   I imagine most medicines are sealed to prevent them from reacting with the air and degrading, for example.

I suspect that is the case for the vast majority of "sealed" packaging, it has little to do with hygiene and is more to keep the product in good condition.  It's the retailers who then will decide if it's a product that they don't really want back "for hygiene reasons" (which I suspect its more about customers being uncomfortable with someone else having potentially used certain products than any genuine hygiene reason.)

The CCRs state products that are sealed for hygiene/health purposes. It’s my guess that, certain products that could have life threatening consequences if tampered with, have to be manufactured as a sealed/tamperproof product, i.e, medicines. Things like food would come under hygiene. It can’t be mandatory though to have to seal food. You have cakes/bread/fruit/vegetables in open baskets in supermarkets. Going back to my original post, the supplier might be right in refusing the return due to hygiene as they’ve said so in their T & Cs. What I don’t think they’re right in saying, is why the item was sealed in the first place. It wasn’t sealed due to hygiene/health, more like part of a normal manufacturing process. 

Any product could have life-threatening consequences if it's tampered with.  It all depends on how it's tampered with I suppose.  Stick a bit of Novichok on a TV remote and someone is going to have a bad day...

I don't believe anything has to be sealed for hygiene reasons, but clearly, it is in a retailers interest to cite "hygiene reasons" whenever it can get away with it as it makes it that little bit harder for a consumer to return the product. Obviously, there are limits to what a retailer can reasonably refuse returns for on hygiene reasons but I suspect that would ultimately be up to a court to decide.

I don't believe that it matters one jot why the item was sealed in the first place as far as the CRA goes and I suspect that plenty of things that are "sealed for hygiene reasons" were not sealed for that purpose by the manufacturer.  That it was sealed, and that it is a product that could reasonably be refused a return for hygiene reasons appears to be sufficient.

I guess we could go on for day’s speculating what, or if anything is mandated. Yes, your right, anything could be tampered with & it’d be up to the individual or shop assistant to spot it. The bottom line is, the store I bought my tank off, has a pretty shoddy customer service to refuse my return, carte blanche. They would see on inspection, that the tank is unused. I was willing to pay the re-stocking fee. They could then sell it on as a customer return, which a lot of shops do, including vape shops. 

I don't think it's particularly relevant the true reason fo the shop refusing your return if they can actually use the law as an excuse to refuse.

I don't think it's completely unreasonable to refuse returns of vape tanks (that people stick parts of in their mouths) citing hygiene reasons.  Admittedly I don't think it's an open and shut case but still, it's nothing absurd like refusing the return of a TV for the same reason.

Obviously, you don't agree but really your only remedy is going to be to take the matter to court and see if a judge agrees with you.  Perhaps a credible threat of legal action will get the retailer to acquiesce before it gets to that point.

Jenni_D

unholyangel said:

So if the goods aren't sealed and aren't otherwise exempt, you should have the right to cancel. 
If the goods are sealed and you don't unseal them, you have the right to cancel. 
But the trader must also inform you of the circumstances in which you can lose the right to cancel. 

Most retailers fail with the information requirement. 

Lot's of discussion around the nuance of the legislation, but let's focus on what matters for the OP ... did the retailer give the OP the T&Cs in a durable medium (i.e. in an email is OK - a link in an email to website T&Cs is not) before they became bound by the contract? (i.e. before delivery). And did those (durable medium) T&Cs say that sealed goods are exempt from the right to return?

Butter_Crunch

Jenni_D said:

unholyangel said:

So if the goods aren't sealed and aren't otherwise exempt, you should have the right to cancel. 
If the goods are sealed and you don't unseal them, you have the right to cancel. 
But the trader must also inform you of the circumstances in which you can lose the right to cancel. 

Most retailers fail with the information requirement. 

Lot's of discussion around the nuance of the legislation, but let's focus on what matters for the OP ... did the retailer give the OP the T&Cs in a durable medium (i.e. in an email is OK - a link in an email to website T&Cs is not) before they became bound by the contract? (i.e. before delivery). And did those (durable medium) T&Cs say that sealed goods are exempt from the right to return?

When I ordered on-line I received an order acknowledgment, but there’s no T & Cs on it nor is there a link to their website T & Cs. Only thing on there is a link to a map of where the shop is (I chose click & collect) & an email address if you needed to ask any questions. I was handed them in a sealed non see through bag through a half opened door. He didn’t say anything other than thanks. He wasn’t even wearing a mask, thankfully I was. 

unholyangel

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(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;

The implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

37 It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Link to case I've quoted, in case anyone is interested

Butter_Crunch

@unholyangel - thanks for that, it’s appreciated. Obviously, I’m not going to consider taking them to court over a £20 tank. It’s a matter of principle & their carte blanche approach. I'll approach them again & see what they say. If they still refuse, I’m not sure what I can do, other than maybe put it down to experience..

unholyangel

Butter_Crunch said:

@unholyangel - thanks for that, it’s appreciated. Obviously, I’m not going to consider taking them to court over a £20 tank. It’s a matter of principle & their carte blanche approach. I'll approach them again & see what they say. If they still refuse, I’m not sure what I can do, other than maybe put it down to experience..

As a pragmatic approach, if it's leakproof, you could fill it with a different liquid to give yourself easy variety without having to wait till you finish the current one. You obviously liked the tank enough to buy it.

Or, sell it on.