Consumer Rights vs Vendor T & C’s

Butter_Crunch

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Just to clarify, the shop has never said the box was sealed for hygiene/health reasons. Those are reasons they’re using to refuse refunding me. They evaded answering my questions when I asked why all vape products aren’t sealed, nor did they respond when I told them about the pods I received off another shop un-sealed..

unholyangel

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

zzyzx1221

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

unholyangel

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

Parking_Eyerate

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Butter_Crunch

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Unfortunately you have to be registered as a business seller on eBay to sell vape products. There was a huge amount of 2nd hand vape gear on there before they changed the rules. I bought a few mods & tanks off there when I first started vaping. There’s a few groups on Facebook, VEX being one of them..

Manxman_in_exile

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).
...

Thank you

David713

The mattress exemption has never made sense to me.
A pair of earrings for pierced ears can be exempt from the change of mind returns if they are supplied in a sealed package but a mattress can't yet it's far easier, far cheaper and possibly far more effective to sterilise a pair of earrings than a mattress and I'm sure that sterilising jewellery of all types is something that most sensible jewellers would do with anything taken if for repair or adjustment.

zzyzx1221

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

It's not daft at all.

Have most products actually been sealed for hygiene reasons?  I very much doubt it.  An item of clothing (let's say underwear) in a plastic bag invariably won't have been sealed for this purpose by the manufacturer, it's inconsequential to them as they're not dealing with consumers.  They will seal it so it doesn't get dirty or damaged (something they do care about).  So the argument would then be that if the retailer tries to argue this was "sealed for hygiene purposes" well, it wasn't, was it? It was sealed so it won't get dirty in transit.

If your argument were to hold true, the only way a retailer could claim they were "sealed for hygiene purposes" would be to request the manufacture do this (some have that sway, many won't) or to be extra sure, unseal it and reseal it themselves to ensure they were, truly "sealed for hygiene purposes."

Of course, that's an entirely absurd proposition, because it doesn't matter why they were sealed in the first place, just that they were sealed.  So a retailer can take an already sealed product, one that can be justifiably "sealed for hygiene purposes" (not a TV or a PlayStation 5 or apparently a mattress) and just say the bag it came in is a hygiene seal, even though the entity that sealed it didn't actually seal it for that purpose.  It actually is very much relevant to this discussion as the OP has taken issue with the fact that they don't believe the seal on the product was done for "hygiene reasons" as it was done by the manufacturer.  I don't think it was done for this purpose either, but I don't think that's a problem if the retailer can genuinely cite "hygiene concerns" as a reason for not taking a product back (this obviously is somewhat debatable for this product)

As has been pointed out your judgment is entirely irrelevant here, as again I've yet to dispute that people can't just say "it's sealed therefore you can't return it for hygiene reasons" for every sealed product.  I've always acknowledged that.

unholyangel

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

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.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Their finding wasn't that there wasn't enough hygiene concerns. It was that it is not the type of packaging (whether applied by manufacturer, retailer or a magic fairy) which determines the application of the exemption but rather the nature of the goods. 

Again

 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.

 Therefore it wasn't necessary to answer the question on what packaging should look like, because it's not dependent on what type of packaging they used but rather why they are sealed (because of the nature of the goods). If the goods aren't sealed for hygiene/health reasons, then nor (or accordingly if you prefer the court speak) can they be inappropriate for return due to health/hygiene concerns. It can't be deprived of a protection it never had.