Consumer Information Act , 1978

1 Interpretation.

1.—(1) In this Act—

“accommodation” means living accommodation;

“the Acts” means the Merchandise Marks Acts, 1887 to 1970;

“advertisement” includes a catalogue, a circular and a price list;

“the Director” means the holder of the office of Director of Consumer Affairs established by section 9 of this Act;

“goods” includes ships, vehicles and aircraft, land, things attached to land and growing crops;

“the Minister” means the Minister for Industry, Commerce and Energy;

“place” includes any premises and any stall, vehicle, ship or aircraft;

“the Principal Act” means the Merchandise Marks Act, 1887;

“provide” in relation to a service or facility includes “render” and cognate words shall be construed accordingly;

“service” includes any service provided by a person in the practice of a profession;

“services” does not include anything done under a contract of service;

“supply” includes offer to supply and cognate words shall be construed accordingly.

(2) For the purposes of the Acts and this Act, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall be deemed to be a trade description applied or statement made in the course of a trade, business or profession if, but only if, it is or forms part of an advertisement.

(3) A person exposing goods for supply or having goods in his possession for supply shall be deemed, for the purposes of this Act, to offer to supply them.

2 Extension of definitions of “trade description” and “false trade description” in Principal Act.

2.—(1) Section 3 (1) of the Principal Act is hereby amended by the substitution for the definition of “trade description” of the following definition:

“‘trade description’ means any description, statement or other indication, direct or indirect—

(a) as to the number, quantity, measure, gauge, capacity or weight of any goods, or

(b) as to the place or country in which any goods were manufactured, produced, processed, reconditioned, repaired, packed or prepared for sale, or

(c) as to the mode of manufacturing, producing, processing, reconditioning, repairing, packing or preparing for sale of any goods, or

(d) as to the person by whom and the time at which any goods were manufactured, produced, processed, reconditioned, repaired, packed or prepared for sale, or

(e) as to the material of which any goods are composed, or

(f) as to any goods being the subject of an existing patent, privilege or copyright, or

(g) as to the fitness for any purpose, strength, performance, behaviour or accuracy of any goods, or

(h) as to any physical characteristic of any goods not referred to in the preceding paragraphs of this definition, or

(i) as to the conformity of any goods with any standard or their passing of any test or their commendation by any person, or

(j) as to the identity of the supplier or distributor, or the standing, commercial importance, competence or capabilities of, the manufacturer, producer, supplier or distributor, of any goods, or

(k) as to the contents of books or as to their authors, as to the contents of cinematograph films (within the meaning of the Performers' Protection Act, 1968) or as to their producers or as to the contents of recordings (within the meaning of the Performers' Protection Act, 1968) or as to the performers on such recordings, or

(l) as to any history of any goods not referred to in the preceding paragraphs of this definition, including their previous ownership,

and the use of any figure, word or mark which, according to the custom of the trade is commonly taken to be an indication of any of the above matters shall be deemed to be a trade description within the meaning of this Act;”

(2) (a) The definition of “false trade description” in the said section 3 (1) shall be construed as if the references to false in a material respect were references to false to a material degree and included references to misleading to a material degree.

(b) In paragraph (a) of this subsection “misleading to a material degree” means likely to be taken for such an indication of any of the matters specified in the definition of “trade description” in the said section 3 (1) of the Principal Act as would be false to a material degree.

(c) Anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of “trade description” in the said section 3 (1) and, as such an indication, would be false in a material respect, shall be deemed to be a false trade description.

(d) A false indication or anything likely to be taken as an indication which would be false that any goods comply with a standard specified or recognised by any person or implied by the approval of any person shall be deemed to be a false trade description, if there is no such person or no standard so specified, recognised or implied.

3 Termination of certain defences under Principal Act.

3.—(1) In a prosecution of a person for an offence under section 2 (1) of the Principal Act as amended by this Act in relation to the application to goods of a false trade description or the causing of such an application to be made, it shall not be a defence for the person to prove that he acted without intent to defraud.

(2) In a prosecution of a person for an offence under section 2 (2) of the Principal Act as amended by this Act in relation to the sale, exposure for sale or having in possession for sale in the course of any trade, business or profession of goods or things to which a false trade description is applied, it shall not be a defence for the person to prove the matters specified in paragraphs (a), (b) and (c) of the said section 2 (2).

(3) This section is without prejudice to section 22 of this Act.

4 Provision in relation to application and use of trade descriptions.

4.—(1) Section 2 (1) of the Principal Act is hereby amended by the substitution for paragraph (d) of the following paragraph:

“(d) in the course of any trade, business or profession, applies any false trade description to goods, or”.

(2) Section 2 (2) of the Principal Act is hereby amended insofar as it relates to trade descriptions, by the substitution of “in the course of any trade, business or profession” for “or any purpose of trade or manufacture”.

(3) Section 5 of the Principal Act is hereby amended, insofar as it relates to trade descriptions, by the substitution for subsection (1) of the following subsection:

“(1) (a) A person shall be deemed to apply a trade description to goods if—

(i) he affixes or annexes it to them or in any manner marks it on or incorporates it with—

(I) the goods themselves, or

(II) anything in, on or with which the goods are sold,

(ii) he places the goods in, on or with anything to, on or with which the trade description has been affixed, annexed, marked or incorporated or places any such thing with the goods.

(b) A person shall also be deemed to have applied a trade description to goods if he uses the trade description in any manner likely to be taken as referring to the goods.

(c) Where goods are sold in pursuance of a request in which a trade description is used and the circumstances are such as to make it reasonable to infer that the goods are sold as goods corresponding to that trade description, the person selling the goods shall be deemed to have applied that trade description to the goods.

(d) An oral statement may amount to the use of a trade description.”.

5 Trade descriptions in advertisements.

5.—(1) Where a trade description is used in an advertisement in relation to any class of goods, the trade description shall be taken as referring to all goods of that class, whether or not in existence at the time the advertisement is published.

(2) In determining for the purposes of this section whether any goods are of a class to which a trade description used in an advertisement relates regard shall be had not only to the form and content of the advertisement but also to the time, place, manner and frequency of its publication and all other matters making it likely or unlikely that a person to whom the goods are sold would think of the goods as belonging to the class in relation to which the trade description is used in the advertisement.

6 False or misleading statements as to services, etc.

6.—(1) If a person, in the course or for the purposes of a trade, business or profession—

(a) makes a statement which he knows to be false, or

(b) recklessly makes a statement which is false

as to any of the following matters, that is to say—

(i) the provision in the course of the trade, business or profession of any services, accommodation or facilities,

(ii) the nature, effect or fitness for purpose of any services, accommodation or facilities provided in the course of the trade, business or profession,

(iii) the time at which, manner in which or persons by whom any services, accommodation or facilities are so provided,

(iv) the examination, approval, use or evaluation by any person of any services, accommodation or facilities so provided, or

(v) the place where any service, facility or accommodation is so provided or the amenities of any such accommodation,

he shall be guilty of an offence.

(2) For the purposes of this section—

(a) anything (whether or not a statement as to any of the matters specified in the preceding subsection) likely to be taken for such a statement as to any of those matters as would be false shall be deemed to be a false statement as to that matter; and

(b) a statement made regardless of whether it is true or false shall be deemed to be made recklessly, unless the person making it had adequate reasons for believing that it was true.

(3) In relation to any services consisting of or including the application of any treatment or process or the carrying out of any repair, the matters specified in subsection (1) of this section shall be taken to include the effect of the treatment, process or repair.

(4) In this section “false” means false to a material degree.

7 False or misleading indications of prices or charges.

7.—(1) If a person offering to supply goods of any description or provide any services or accommodation gives by any means a false or misleading indication of—

(a) the price or charge for the goods, services or accommodation,

(b) the price or charge at or for which the goods or goods of the same description or the services or accommodation were or was previously offered,

(c) a recommended price for the goods, or

(d) any charge for installation of or servicing of the goods or any price for ancillary equipment reasonably required for the purpose of the use or enjoyment of the goods,

he shall be guilty of an offence.

(2) For the purposes of this section—

(a) an indication that goods, services or accommodation were or was previously offered at a different price or charge or at a particular price or charge shall be treated, unless the contrary is expressed, as an indication that they were so offered openly at the same place within the preceding 3 months for not less than 28 successive days;

(b) an indication as to a recommended price—

(i) shall be treated, unless the contrary is expressed, as an indication that it is a price recommended by the manufacturer, producer or other supplier, and

(ii) shall be treated, unless the contrary is expressed, as an indication that it is a price recommended generally for supply by retail in the area where the goods are offered;

(c) anything likely to be taken as an indication as to a recommended price or as to the price or charge at or for which goods, services or accommodation were or was previously offered shall be treated as such an indication;

(d) a person advertising goods, services or accommodation as available for supply or provision shall be taken as offering to supply or provide them or it; and

(e) an indication of the price or charge at or for which any goods, services or accommodation are or is offered by a person shall be treated, unless the contrary is expressed, as an indication that those goods, services or accommodation are or is offered at or for that price or charge in every place in the State where those goods, services or accommodation are or is offered by the person:

Provided that, where such an indication is given at the place where the goods, services or accommodation are offered, the indication shall be treated, unless the contrary is expressed, as relating only to the goods, services or accommodation offered at that place.

8 Misleading advertisements.

8.—(1) A person shall not publish, or cause to be published, an advertisement in relation to the supply or provision in the course or for the purposes of a trade, business or profession, of goods, services or facilities if it is likely to mislead, and thereby cause loss, damage or injury to members of the public to a material degree.

(2) Any person who contravenes subsection (1) of this section shall, subject to the provisions of this Act, be guilty of an offence.

(3) The Director may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication, or the further publication, of an advertisement the publication of which is or would be a contravention of subsection (1) of this section.

9 Director of Consumer Affairs.

9.—(1) There shall stand established the office of Director of Consumer Affairs and the holder of the office shall be known as the Director of Consumer Affairs.

(2) The office of Director shall be a position in the Civil Service and no person shall be appointed to the office unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 15 of that Act, have, under section 17 of that Act, selected him for appointment to the office.

(3) A person appointed to be the Director shall hold office for a period of five years but the Minister may, if he thinks fit, continue the appointment (including an appointment previously continued under this subsection) for such further period not exceeding five years as he considers appropriate.

(4) (a) The Director may be removed from office at any time by the Minister.

(b) If the Director is removed from office under this sub-section, the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for the removal.

(5) The Director shall be independent in the performance of his functions.

(6) The functions of the Director shall be—

(a) to keep under general review practices or proposed practices in relation to the advertising of, and the provision to members of the public of information in relation to and descriptions of, goods, services, accommodation and facilities,

(b) to carry out examinations of any such practices or proposed practices where the Minister requests him to carry out examinations or where the Director considers that, in the public interest, such examinations are proper,

(c) to request persons engaging in or proposing to engage in such practices that are, or are likely to be, misleading to members of the public in a material matter, to discontinue or refrain from such practices,

(d) to institute proceedings in the High Court for orders requiring persons engaging or proposing to engage in such practices that are, or are likely to be, misleading to members of the public in a material matter to discontinue or refrain from such practices,

(e) to request persons engaging in or proposing to engage in such practices to make such alterations of or deletions from, or provide such definitions of, expressions that are, or are proposed to be, used in or in connection with such practices, as would, in the opinion of the Director, increase the precision of, or the amount of information contained in, the expressions, or facilitate the understanding of the expressions,

(f) to encourage and promote the establishment and adoption of codes of standards in relation to such practices,

(g) to ensure that the provisions of any legislation providing for the protection of consumers that, in his opinion, should be brought to the attention of the public are brought to the attention of the public and for this purpose to publicise those provisions in such manner and to such extent as he thinks appropriate,

(h) without prejudice to the powers or functions of any other prosecuting authority, to bring or prosecute proceedings in relation to offences under the Acts or this Act.

(7) The Minister may by order under this section confer on the Director such further functions as he considers appropriate in respect of any matters to which the Acts or this Act or any other enactment making provision for the protection of consumers relates.

(8) The Director may do all such acts or things as are necessary or expedient for the purposes of the exercise of his functions under this Act.

(9) Where proceedings are instituted by the Director pursuant to subsection (6) (d) of this section and the Director has, prior to the institution of the proceedings, made a request under subsection (6) (c) of this section to the persons concerned and the request has not been complied with, the Director may, at the discretion of the High Court, be granted an order by that Court in the appropriate terms referred to in the said subsection (6) (d) if the practices or proposed practices that are the subject of the proceedings are, or are likely to be, misleading to members of the public in a material matter.

(10) The Director may perform such of his functions as he may deem proper through or by any officer of the Minister duly authorised by the Director in that behalf.

(11) (a) Whenever it appears to the Minister that the Director is temporarily unable to discharge his duties, the Minister may appoint a person to act in place of the Director during such inability or for such shorter period as the Minister thinks proper.

(b) A person appointed under paragraph (a) of this sub-section shall have all the powers, rights and duties conferred on the Director by this Act and each reference in this Act to the Director shall be deemed to include a reference to such a person.

(12) (a) The Director shall in each year make a report to the Minister in relation to the performance of his functions in the preceding year and the Minister shall, within one year of receipt by him of the report, cause copies of the report to be laid before each House of the Oireachtas.