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Delivering the Goods in the EU, the UK and Scotland

The deliver-to-consumer market has seen rapid growth in the past 20 years, fuelled by modern society’s ability to order online and over the phone. As with bricks and mortar retailers, traders that deliver, whether they sell online or not, must comply with regulations drawn from the European Union (EU), the UK and Scotland. The sheer volume of legislation emanating from different government bodies can make the sale of a single item appear rather daunting.

Distance selling

Delivering goods to consumers is commonly referred to as ‘distance selling’ - selling goods or services without face-to-face contact, whether on the internet, by mail order, over the phone or via the television. Although the transaction takes place remotely and not in a store, the legal rights of traders and consumers as specified under the UK’s Sale of Goods Act and the Supply of Goods and Services Act still apply.

The European Distance Selling Directive through the Consumer Protection (Distance Selling) Regulations 2000 provides more specific legal guidelines. These regulations apply to the sale of goods or services, and give consumers the right to:

  • receive clear information about the supplier, the goods or services and the sale before deciding to buy
  • confirmation of the above information in writing
  • a cancellation period of seven working days in which to withdraw from the contract
  • protection from payment card fraud

The key points to be aware of from the European Distance Selling Directive are:

Clear written information

Traders must supply written pre-purchase information about their identity, the goods or services offered and payment options. Consumer rights in the event of a cancellation or complaint should also be defined. This information must be provided in a clear and comprehensible manner according to the method of communication used, for example, in an email or a catalogue.

Cancellation

A consumer has the right to cancel a purchase or contract for services at any time during the cancellation period of seven working days, as specified in the pre-purchase information. This should be done by notifying the supplier in writing. However, the following types of goods are exempt from the right to cancel:

  • goods or services priced according to fluctuations in the financial market (e.g. stock market price-linked commodities) that are out of the supplier’s control,
  • goods that cannot be returned (e.g. personalised goods), or are likely to expire rapidly (e.g. dairy products)
  • audio or video recordings or computer software that has been unsealed by the consumer
  • newspapers or magazines
  • gaming, betting or lottery services

Card protection

Where a consumer’s payment card has been used in a fraudulent manner to purchase goods or services online or otherwise, then the consumer has the right to cancel those payments.

Age restricted goods

Traders have the responsibility of ensuring they do not sell age restricted products to people under the legal age of purchase when engaging in distance selling, and effective systems must be in place to prevent such activity. Examples of measures that can be taken include: only accepting credit card payments, age verification online or on delivery, or operating a store collection only policy.

Consumer information

While there are clear rules in place on distance selling, a recent survey showed less than half of consumers are aware of them (eDigitalResearch Survey 2013), and even those that have heard of the Distance Selling Directive still struggle to identify their rights.

Research from the Scottish Government supports these findings. In 2013, it published ‘Consumer Protection and Representation in an Independent Scotland: Options’. The document identified that the current UK approach to consumer rights is fragmented, causing confusion for both consumers and traders. An ombudsman for Scotland was identified as one potential answer for future consumer clarity.

As the ‘deliver-to-consumer’ market expands further, with online purchases predicted to grow by 17 per cent in the next year, consumer information must be prioritised. Ensuring that shoppers and traders are well informed about their rights and obligations will boost market confidence and ultimately encourage further growth and prosperity in the retail sector.

For more information please contact Euan McSherry, Associate Partner at DWF, Edinburgh.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Euan McSherry

Partner - Head of Real Estate Litigation (Scotland)

I provide litigation advice to clients in the retail, food and banking sectors. I am the first Scottish lawyer to be listed on the Register of RICS Accredited Mediators.