Distance Selling Regulations and foodstuffs

TheInfamousGrouse · 4 April 2012 at 6:05PM

Hello all,

For the last couple of years I've been bulk buying cereal bars from a manufacturer's website. I've invariably done this by logging into their site and using the "Re-buy your last order" button, bypassing the main shop pages. We buy £36 worth at a time, which qualifies for free shipping.

Unfortunately between the previous and current orders they have changed their recipe to include milk, to which my wife is allergic. We only discovered this upon receipt of the latest order, which was received two days ago.

Without initially mentioning the SOGA or DSRs I have opened a dialogue with their Customer Services in the hope of sorting out a refund for this order, on the grounds that their "Re-buy your last order" feature did not reflect that the recipe had changed.

Their initial response has puzzled me. They have offered to refund the cost of the bars minus £9.34 to cover their original shipping cost, even though the original shipping was free because of the size of the order. Even had the shipping not been free, the DSRs clearly state that the original shipping cost should form part of the refund. I understand that any costs incurred by me in returning the items will not be refunded, which is fine.

So my intent is now to send them a reply, informing them of my specific wish to cancel the order under the DSRs within 7 days of receipt. But before doing this I checked the Terms and Conditions on their website, and as I see it they seem to be playing a little fast and loose with the regulations. This is from their FAQs:

The Distance Selling Regulations 2000 are designed to protect customers who are not physically present with the seller at the time of purchase. If you have ordered by telephone or internet, under the Distance Selling Regulations, you have a statutory right to cancel your order and receive a full refund for any home delivery item (excluding those ordered in-store). This does not apply to, items that due to their nature cannot be returned; perishable goods (e.g. food, flowers and periodicals/magazines), items personalised or made to your specification; audio/video recordings or software that you have unsealed.

The highlighted part concerns me, as the DSRs specify fresh food as exempt. Since these cereal bars have a shelf life measured in months I can't see how an exemption can apply.

As such under the regulation once an order has been despatched cancelation (sic) or refund policy doesn’t apply as we only supply perishable goods.

And here they reiterate that they are supplying perishable goods. I don't know how the law defines perishable goods but I would have thought common sense would dictate that fresh fruit, vegetables, milk, meat etc. would fall into this category whereas a boxed, manufactured foodstuff with a use-by date of 22-09-2012 would not.

Their FAQ does go on to say that individual requests for cancellations and refunds will be handled on a case-by-case basis but their initial response is not promising. At the very least trying to reclaim postage costs on something that had free shipping seems a bit cheeky.

Am I wrong on this? Where do I stand as regards the DSRs, and is their website in technical breach by describing their products as perishable and claiming exemption?

Any advice would be appreciated before I take this further.

wealdroam · 4 April 2012 at 6:23PM

Paragraph 2.20 on page 9 of the OFT's Guide to the DSRs talks about foodstuffs.
In the OFT's opinion, your goods should be refundable.

I think you must accept some of the blame though, as you did no checking before placing your order.

You may find that you will need to test this in the small claims court.

Flyboy152 · 4 April 2012 at 11:10PM

Just to re-iterate what Wealdroam has referred to, section 6 of the DSRs states:

http://www.legislation.gov.uk/uksi/2000/2334/regulation/6/made

Contracts to which only part of these Regulations apply

6.-(1) Regulations 7 to 20 shall not apply to a contract which is a timeshare
agreement, within the meaning of the Timeshare Act 1992(1) and to which that Act applies.

(2) Regulations 7 to 19(1) shall not apply to-

(a)contracts for the supply of food, beverages or other goods intended for everyday consumption supplied to the consumer's residence or to his workplace by regular roundsmen

So, on the face of it, it seems that cereal bars, purchased at a distance and delivered by courier/Royal Mail are not exempt.

TheInfamousGrouse · 7 April 2012 at 10:43AM

Thanks for the feedback, folks. I figured it was fairly self-evident that anything with a stamped use-by date would not count as 'perishable' but it's nice to have some citations to quote.

As for not checking the details, of course I'm kicking myself for not doing so now. Recipes do change over time and we're always careful to check the boxes in the supermarkets. In fact own-brand recipes changing so frequently is the reason we ended up buying straight from the manufacturer in the first place.

Having said that, the "Re-buy your last order" facility offered by this site takes you straight to the shopping cart/checkout, bypassing the product page which holds the recipe information. Given that it clearly states that this is a repeat of the previous order (which was the old recipe) could it be argued that one should reasonably expect the two orders to be absolutely identical? Or do those ever-present "we reserve the right to change the product etc." clauses trump this?

Probably a moot point in this case since the DSRs state that the buyer can cancel an order for any reason within the cooling off period. It's certainly a wake-up call for me though. I've been shopping online for 17 years and this is the first time I've had to invoke the DSRs.

wealdroam · 7 April 2012 at 11:23AM

OP, please do remember to post the outcome, won't you?

System · 7 April 2012 at 11:25AM

The_Infamous_Grouse wrote: »

Having said that, the "Re-buy your last order" facility offered by this site takes you straight to the shopping cart/checkout, bypassing the product page which holds the recipe information.

Which is what I would expect

The_Infamous_Grouse wrote: »

Given that it clearly states that this is a repeat of the previous order (which was the old recipe) could it be argued that one should reasonably expect the two orders to be absolutely identical?

No it will be the item that has that part number/SKU/name. Slight changes in recipe do not create a new product

The_Infamous_Grouse wrote: »

Or do those ever-present "we reserve the right to change the product etc." clauses trump this?

in this case yes

TheInfamousGrouse · 7 April 2012 at 11:28AM

OK, it's time for me to eat a bit of humble pie in lieu of cereal bars.

Having re-read the company's initial e-mail prior to firing off a response, I now realise that the suggested deduction (which is closer to £13, not £9.34 as I originally calculated) is not to cover the original postage cost but to cover the cost of returning the shipment, which the company will arrange.

A quick calculation on the Royal Mail website tells me it would cost £15+ to send the parcel back by Signed For parcel post, so this is actually a slightly better deal than I would get by invoking the DSRs and paying for return postage myself.

I guess I speed-read the words "unfortunately... have to deduct... shipping" and went into Angry Consumer Mode without thinking it through. My only consolation is that my missus also read the e-mail and made the exact same mistake as I did, although that may just be because she's lived with me for too long and has become just as cynical as I am.

I still think their "Re-order" system is risky in situations like this and their interpretation of DSRs exemptions is clearly a bit wide of the mark. But those are both moot points now. They are willing to arrange this return at reasonable cost, which has restored my faith in vendor/customer relationships just a little.

And my 17-year no-DSRs run remains unbroken.

shaun_from_Africa · 7 April 2012 at 11:38AM

I would say that the ""we reserve the right to change the product etc" clause should not entitle the company to make a charge in this case.

Fair enough if it was a minorr recipe change, but in this instance the change involved adding a totally new ingredient which a fair number of people are allergic to, or have an intolerance to.
At the very least they should have warned existing customers who had signed up to the auto reorder service so that they could decide whether to cancel or not.

At least the company concerned are doing the right thing so you won't be out of pocket over it.

custardy · 7 April 2012 at 11:41AM

if you are going to pay to return,then check out the courier thread in the eBau section
£13 seems a bit pricey TBH

TheInfamousGrouse · 7 April 2012 at 12:03PM

custardy wrote: »

if you are going to pay to return,then check out the courier thread in the eBau section
£13 seems a bit pricey TBH

Possibly true if I shopped around but it's certainly cheaper than Royal Mail. Maybe if the company had forced me down the DSRs route I might have tried to reduce the shipping cost by a few quid, but in this case it's much simpler to let them do all the legwork. And the free shipping we've had on multiple orders over the years has more than compensated.

I'm more concerned about where we're going to find non-allergenic snack/cereal bars now that pretty much every damn thing seems to end up with milk in it. Mrs Grouse is also allergic in varying degrees to nuts, eggs, tomatoes, coconut oil, citrus fruit, apple juice and a whole bunch of other unexpected stuff too long to list. Suffice to say as manufacturing processes and ingredient lists become more standardised (or companies start playing it safe and listing all allergens on their products just in case) it's becoming harder to find manufactured foods that don't contain at least one risky ingredient. The way things are going she'll be subsisting on a diet of bananas and water before too long.

But that's a rant for another day.

Distance Selling Regulations and foodstuffs

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free