No refund from HMV due to "slight variation" technicality - is this right?

musicenthusiast

I pre-ordered coloured vinyl records from HMV online, back in December, that arrived this week in completely different colours to those advertised and described (not just slight variation, but entirely different colour pressings). HMV are refusing a return or exchange, relying on a “slight colour variation” disclaimer and saying opened items can’t be exchanged or refunded.

Please see HMV's full response to my complaint below:

"I was sorry to hear that you are unhappy with your recent purchases. Please be advised that although the product listings for the Dalliance and Paradise vinyls may have specific images advertised, the product description for both items does mention the following: 
 
"*Please note, due to the nature of production, product colouring will differ slightly from the image and each other."
 
Therefore, on this occasion, we would be unable to assist with a return/exchange for the vinyls mentioned as a disclaimer for the product colouring was included and the items have already been opened; we do require all unwanted items to be returned/exchanged in an unopened, unused and perfect condition"

Under the Consumer Rights Act 2015, is a retailer allowed to refuse a refund or replacement in this situation, or do goods that differ so significantly from their description count as “not as described” even if a disclaimer is included?

Having done some research into this issue, it seems like there was a fault with the manufacturer and ALL retailers were sent different coloured pressings to those originally advertised. Other retailers amended the product listings, showing and describing the new variations on their websites, due to this fault. Other retailers even contacted consumers who had pre-ordered the original colours, explaining the issue and offering some people a partial discount. Importantly, HMV did not provide any updates about this situation, and are still advertising the old colour variations on their website.

Any advice is greatly appreciated!

ButterCheese

Is this a limited edition or something?  Did they say they could provide you with the correct colour pack?  And if so when?  I only say because things like this (i.e. incorrect issues) might be collectors items in a few years time, once they re-issue the pack en-masse in the correct colours.  Apart from that, what do you want from them?  Your consumer rights as far as I know allow you to return the item for a full refund, you should quote the relevant section in your email to them.  But you'll obviously have to return the record and its packaging, and then wait for the correct coloured issue to be distributed, if that happens at all?

eskbanker

musicenthusiast said:

Under the Consumer Rights Act 2015, is a retailer allowed to refuse a refund or replacement in this situation, or do goods that differ so significantly from their description count as “not as described” even if a disclaimer is included?

[...]

Any advice is greatly appreciated!

Another option would be to cite the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 instead of CRA, as these give you the right to cancel the contract for a full refund within 14 days, without having to give a reason.

Edit: as pointed out later, there is an exception for sealed audio recordings that are opened, so the retailer can refuse to accept a cancellation under these regs.

Alderbank

As @eskbanker says, HMV should have told you that under a different law, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, you are entitled to cancel the contract. Provided you have not handled the goods beyond what is necessary to establish the nature, characteristics and functioning of the goods HMV must give you a full refund.

Since the vinyls were each in their sleeves and the colour could not be established without opening the cellophane, HMV ought to refund you in full within 14 days of cancelling the contract.

Go back to them and claim your rights.

You might possibly have a claim that under the CRA the goods do not conform to contract but that sounds to be a bit of a judgement call and might be difficult to establish.

musicenthusiast

Thank you for all your responses! I will definitely include the Consumer Contracts information in my response.

musicenthusiast

ButterCheese said:

Is this a limited edition or something?  Did they say they could provide you with the correct colour pack?  And if so when?  I only say because things like this (i.e. incorrect issues) might be collectors items in a few years time, once they re-issue the pack en-masse in the correct colours.  Apart from that, what do you want from them?  Your consumer rights as far as I know allow you to return the item for a full refund, you should quote the relevant section in your email to them.  But you'll obviously have to return the record and its packaging, and then wait for the correct coloured issue to be distributed, if that happens at all?

These are limited edition, yes. All copies have been affected by the manufacturers fault, and so sadly they won't be rare/collectors items, as there are no plans to press more (that I'm aware of). Ideally, I'd like a refund because they aren't as described/pictured, and I wouldn't have purchased them if I'd known what they actually look like. 

musicenthusiast

eskbanker said:

musicenthusiast said:

Under the Consumer Rights Act 2015, is a retailer allowed to refuse a refund or replacement in this situation, or do goods that differ so significantly from their description count as “not as described” even if a disclaimer is included?

[...]

Any advice is greatly appreciated!

Another option would be to cite the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 instead of CRA, as these give you the right to cancel the contract for a full refund within 14 days, without having to give a reason.

Does this still apply to pre-orders? I made the order in December, but it's only just arrived.

musicenthusiast

Alderbank said:

As @eskbanker says, HMV should have told you that under a different law, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, you are entitled to cancel the contract. Provided you have not handled the goods beyond what is necessary to establish the nature, characteristics and functioning of the goods HMV must give you a full refund.

Since the vinyls were each in their sleeves and the colour could not be established without opening the cellophane, HMV ought to refund you in full within 14 days of cancelling the contract.

Go back to them and claim your rights.

You might possibly have a claim that under the CRA the goods do not conform to contract but that sounds to be a bit of a judgement call and might be difficult to establish.

I thought that I must have some rights to return these. I haven't handled them beyond opening them to see the colours are incorrect - they haven't been played or anything, so the discs themselves are still in mint condition.

eskbanker

musicenthusiast said:

eskbanker said:

musicenthusiast said:

Under the Consumer Rights Act 2015, is a retailer allowed to refuse a refund or replacement in this situation, or do goods that differ so significantly from their description count as “not as described” even if a disclaimer is included?

[...]

Any advice is greatly appreciated!

Another option would be to cite the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 instead of CRA, as these give you the right to cancel the contract for a full refund within 14 days, without having to give a reason.

Does this still apply to pre-orders? I made the order in December, but it's only just arrived.

The 14 days start from receipt of goods, under clause 30(3):

https://www.legislation.gov.uk/uksi/2013/3134/regulation/30

MyRealNameToo

musicenthusiast said:

ButterCheese said:

Is this a limited edition or something?  Did they say they could provide you with the correct colour pack?  And if so when?  I only say because things like this (i.e. incorrect issues) might be collectors items in a few years time, once they re-issue the pack en-masse in the correct colours.  Apart from that, what do you want from them?  Your consumer rights as far as I know allow you to return the item for a full refund, you should quote the relevant section in your email to them.  But you'll obviously have to return the record and its packaging, and then wait for the correct coloured issue to be distributed, if that happens at all?

These are limited edition, yes. All copies have been affected by the manufacturers fault, and so sadly they won't be rare/collectors items, as there are no plans to press more (that I'm aware of). Ideally, I'd like a refund because they aren't as described/pictured, and I wouldn't have purchased them if I'd known what they actually look like. 

Well they will be as rare/collectors items as they were before as a limited edition colour pressing. They arent going to be extra rare if every item is impacted? 

How different are they? I'm colourblind so the threads I saw with a photo and description really didnt help me as I can't say if the photo matched the description or is different. They look broadly the right sort of thing if slightly different colour ways. 

Did you have some non-standard use for them that the original pink and black smush would have worked but not the silver and black smush that actually was made wouldnt? With these sorts of LPs it's always a bit of gamble anyway because how they are made (compressing different colour chunks of PVC) with each one being pretty much unique and some looking better than others. 

Personally, unless there is some particular connection between the song and the colour dont really see what the problem is personally but that aside, as others have said, you have the right to return anything bought online as long as there hasn't been excessive handling. Even if there has been you still have a right of return but the merchant can apply charges for the handling. 

born_again

Off topic, but I buy music because I like the song, not for the colour of the media it is on 🤷‍♀️