The Trading Standards (Fair Trading) (Guernsey) Ordinance, 20231 (Ordinance) came into force last October and created a new statutory framework for consumer protection and fair trading in Guernsey.
The Ordinance has been a long time in the making but follows a similar structure to protections granted by the Consumer Rights Act 2015 in the UK. The Ordinance was created under the Trading Standards (Enabling Provisions) (Guernsey) Law, 2009 so it only gives protection to consumers in Guernsey and not in Alderney and/or Sark.
THE ORDINANCE COVERS THE FOLLOWING AREAS:
- Consumer rights and remedies when entering into contracts for the supply of goods, digital content and services, including the right to cancel for certain contracts;
- Unfair terms in consumer contracts;
- Unfair commercial practices;
- Information and cancellation rights, and rights regarding additional charges; and
- Product safety.
The Ordinance covers the relationship between “traders” and “consumers”, the “trader” being a person acting for purposes related to that person’s trade, business, craft or profession, and applies whether they supply goods, services or digital content (like shopping apps and services) and the “consumer” being an individual acting for purposes that are wholly or mainly outside of the individuals trade, craft, or profession. The Ordinance also gives grants enforcement powers to the Trading Standards Service (TSL).
The Ordinance is in eight Parts.
- Part I deals with statutory rights under consumer contracts and remedies for breach;
- Part II with unfair contract terms;
- Part III with information requirements and the right to cancel in respect of consumer contracts;
- Part IV with unfair commercial practices and rights to redress;
- Part V with product safety requirements;
- Part VI and VII with civil enforcement of the provisions; and
- Part VIII with final and miscellaneous provisions.
Certain areas are excluded from Part III requirements (like gambling, financial services, immovable property, passenger transport to name a few) but such contracts would still be governed by certain sector specific pieces of legislation which in general also contain specific sector consumer protection rights.
WHAT ABOUT FINANCIAL SERVICES?
Moreover the Ordinance does not only deal with tangible goods, as noted above the Ordinance deals with all goods and services. It therefore applies to financial services (to the extent that they have not been expressly excluded (like Part III of the Ordinance)).
The Ordinance came into force a few months after The Lending, Credit and Finance (Bailiwick of Guernsey) Law, 2022 (LCF Law) came into full effect and works concurrently with it. Should your business be in scope of the LCF Law, you must ensure that you comply with both pieces of legislation. Where relevant both pieces of legislation dovetail so the definitions of unfair terms and fairness are the same and mirrored in both the Ordinance and the LCF Law and respective underlying guidance. If your business does not fall under the scope of LCF Law, you must still ensure your contracts, documents and services comply with the Ordinance. For example, under the Ordinance contractual terms and terms in consumer notices should be both transparent (meaning, expressed in plain and intelligible language and legible) and prominent (that is, brought to the consumer’s attention in such a way that an average consumer would be aware of the term). In addition to this the local regulatory framework may also have specific contractual requirements for a firm to adhere to. Furthermore, there are additional protections in the companies law, competition laws, and data protection legislative provisions.
THE TRADING STANDARDS SERVICE
Guernsey’s TSL enforces the Ordinance. It has various enforcement powers, including:
- power of entry
- power of inspection
- power to seize goods, documents and other evidence
- power to create guidance
- power to apply for an enforcement order
- power to issue safety notices and advertise them on their website
- power to apply to the court to forfeit dangerous goods
The TSL has also created some business guides which can be accessed here Trading Standards Service – advice for businesses – States of Guernsey (gov.gg) and some checklists which can be found here Information, cancellation, and other charges – States of Guernsey (gov.gg)
They have also created guides to help consumers work out what their rights are.
APPLICATION TO YOUR BUSINESS
It is important to ensure your contracts and processes comply with the legislation whether you are a financial services business, a retailer, an online auction house or a charity. There are different requirements under the Ordinance for how information must be provided, depending on the type of contract.
You need to ensure that you have undertaken the following to ensure you comply with the Ordinance:
- You should carry out a full review of all contract terms with your customers and customer notices, marketing materials, telephone scripts and enquiry/complaint handling procedures.
We have attached a checklist to assist your review process.
You should also consider:
- staff training for client facing employees dealing with how to ensure that they do not accidently create new implied terms with the customer in something they say or are perceived to communicate; and
- reviewing your digital content service provision to ensure that you comply with the Ordinance especially where the digital content is supplied free with services that are paid for and where such digital content is not available without the purchase of another service.
For further information, please contact:
Jeremy Berchem, Partner, Appleby
jberchem@applebyglobal.com
