Merchandise Marks (No. 2) Bill, 1969: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Desmond

We in the Labour Party consider this Bill to be a particularly valuable and necessary piece of consumer-protective legislation which is long overdue and we welcome its introduction. Socially it is a potentially important piece of legislation. It is quite proper that the full rigour of statutory sanctions should apply in cases of misleading prepacking descriptions of quantity, content, number, weight or measure. We feel that this legislation will give the shopper greater protection by ensuring that the truth is told in relation to prepackaged goods and goods which should be packed, as the Minister wishes, as far as possible in standard quantities.

Although the Bill goes a considerable distance, it is a relatively narrow measure in terms of consumer protection. Not only should the Minister be supported in this piece of legislation but he should be encouraged to introduce—as he has already indicated in a very tentative manner, as far as we are concerned—a more comprehensive Bill to protect the consumer against false trade descriptions not covered by the 1887 Act. The Minister should, as a matter of urgency, introduce legislation in relation to prices at which goods are for sale and in relation to advertising generally.

It would be appropriate, and I think it would follow from the passage of this legislation, to introduce a much more comprehensive Trade Descriptions Bill along the general lines of the Trade Descriptions Act which has been in operation in Britain for the best part of the past two years. Suppose, for example, a trader in Britain advertises a bedspread and describes it as hand sewn, of pure wool manufacture, and so on; if that description is wrong and if the trader has broken the law the position in Britain is such that he can be charged under the Trade Descriptions Act. We should have similar legislation here. Again, suppose somebody sells a car in England with an alleged mileage of 40,000 miles and it is discovered subsequently that the car had an actual mileage of 65,000 miles, that person can be dealth with summarily for giving a false description. There is urgent need here for a broader and more comprehensive trade descriptions legislation.

The Labour Party do not wish to point the finger at honest manufacturers within the State, and others involved in trading, the majority of whom do not engage in misleading or defrauding the public. Nevertheless, the Labour Party feel it is in the public interest that this legislation should be introduced to curb the small minority who are prepared to make fast profits and exploit the consumer as a result of the explosion of prepackaged goods on the shelves of our supermarkets and shops throughout the country. This measure will stop a lot of that and it has our unqualified support.

Mr. Cunningham

I welcome this very necessary legislation for consumer protection. Does it apply to goods manufactured for export which are packaged or put into containers? It is important that descriptions should be accurate and correct. Let us face the fact that, in very many cases, packaged goods are not correctly described. I think I have mentioned one case to the Minister where I went into a store here to buy Christmas cards. On the outside of the package was indicated "Made in the Republic of Ireland" but, when the contents were taken out, on the individual cards were the words "Made in Italy". This should not happen but if it does happen the people concerned should be penalised.

It should be compulsory to indicate the weight on items such as pots of jam and so on because some containers are constructed in such a way that they appear to contain one pound when, in actual fact, they do not and this is not so indicated. In most western European countries it is necessary and legally binding for the producer or retailer clearly to indicate on the container the weight of the article. The Bill should cover people who use containers which appear to contain a pound in weight but which by one device or another do not do so. While a false description is not actually given, the lack of description can be misleading.

In regard to the matter of pricing there is much to be desired. In the chainstores especially there are all sorts of gimmicks to convey to the customer that he is getting a certain reduction. One of the latest gimmicks I have seen was a huge placard bearing the word "Save" and in large printing underneath was the figure "9d". On further investigation I found the prospective customer was not saving 9d —he was saving "X" pence; the cost of the goods was 9d—but the placard led one to believe there was a saving of 9d. This placard was misleading and was meant to be so. These matters should be dealt with and I hope this Bill is wide enough to do so.

It is appropriate to consider this now in the context of our adoption of the metric system in currency and, later on, in weights and measures. I fear that the changeover from avoirdupois to the metric system and from £ s d to the decimal coinage system will tempt slick operators to take advantage in their pricing. For some time to come the weight of the package both in avoirdupois and in metric weight should be indicated and also the £ s d price and the corresponding decimal price. Unless this is done the busy customer will not have time to work it out and, therefore, there should be a link up between both systems which will give an opportunity for customers to compare prices. Perhaps the Minister has some other means of ensuring that there will not be any "fiddles" operating against the customer when the new systems of coinage and weights and measures are introduced.

Mr. Donegan

I must apologise for not being here to speak at the start of the debate but I was delayed. On all sides of the House there is a desire that there should be good legislation and arrangements for the protection of the consumer. As most articles of a convenient size are prepacked—and those that are not will very soon be marketed in this way—there must be adequate specifications regarding weights, measures and descriptions of the articles. Therefore, it behoves us in this House to see that the consumer is protected: that for the honest manufacturer and packer there is legislation and a pattern of behaviour whereby he can state the proper measure, the right description of the goods, the number of articles and so on and know that he will not be prosecuted or subjected to unfair competition from somebody who falsely or misleadingly describes on the outside of the package particulars of the goods. Half truths could be used in the description of goods, in the number and size of articles, which would constitute a fraud on the consumer and unfair competition for the honest manufacturer.

There are certain points which I consider would best be discussed on Committee Stage. My first point is that the Minister is taking permission to consult whatever interested persons he decides should be consulted. This is wrong and completely protects any future Minister. The present Minister knows I do not believe he would indulge in such a practice. However, any future Minister who decides he will not consult one interested body but will consult another has carte blanche under the present legislation to do that. For example, he might exclude from consultation manufacturers of goods and consult instead packers, or vice versa.

Therefore, I would prefer if an amendment were put down on Committee Stage—not in a spirit of destructive but of constructive criticism—and considered by the Minister, whereby it would be incumbent on any Minister for Industry and Commerce to consult all interested parties. We do not want to extend this to the stage at which it would be merely ridiculous, the stage at which one would have to consult every small boy who buys a lollipop because he is a consumer, but the Minister and his Department should consult all interested parties and not just the parties he and his Department may decide should be consulted. This is very important and it will have to be covered by amendment on the Committee Stage.

There are very stringent penalties, ranging up to two years imprisonment, for contravention of the Act. Because the penalties are so stringent we have a responsibility to ensure that an innocent party will not find himself liable to a sentence of two years in prison because of something done by someone else. I am thinking of the managing director of a company in whose packing house a weighing machine goes wrong. The normal practice is to test weigh every tenth or fifteenth packet to make sure the automatic machine is working correctly. Nobody can be responsible for every action on the part of an employee and it is most unlikely that an employee would want to defraud customers. His wage packet will remain the same and his conditions will be unchanged and so it is most unlikely that he would deliberately defraud consumers but a machine under his control could go wrong and fraud might be committed inadvertently. The penalties could be extremely severe. I am a little worried about this and I hope to put down a sensible amendment on the Committee Stage which would make it a fair defence to prove that the offence was inadvertently committed and that every precaution was taken to ensure that such an offence would not be committed. The courts might interpret this legislation rather strictly, and quite rightly so, because none of us wants to see people who set out to defraud getting away with it. I do not want to take the teeth out of this measure but I want to ensure that an innocent party will not be sentenced to imprisonment for an offence he never intended to commit.

To illustrate my point, an employee in a company with which I was involved a few years ago met with an accident. The employee removed a guard from an elevator. He also removed a guard from another nearby elevator. He then mounted a step ladder. The ladder wobbled and he put out his hand and had two fingers removed by the wheel of the second elevator from which he had removed the guard. The guard should have been kept on the machine. The company was responsible and the man got pretty heavy compensation. I am thinking of the situation in which whoever is responsible gives instructions and these instructions are not obeyed. The courts may find the managing director, or whoever was responsible, guilty of negligence. Again, I will put down an amendment on the Committee Stage to cover this aspect.

I hope when the Minister is making Orders—I was approached by a manufacturer today in regard to this—that he will specify that the contents of packets must be clearly stated. I do not wish to mention a specific article but, if there are two manufacturers of a particular article and one produces a lb. packet containing 16 articles and another produces a lb. packet containing 20 articles, both the weight and the number of articles should be clearly stated on the outside of each packet. A housewife might prefer to have the larger article and another might prefer to have a bigger number. Each can make her own choice and both consumer and manufacturer are protected. This legislation should help both manufacturer and consumer, apart altogether from the penal sections of the Bill.

I should like to know how the officers appointed will be qualified to decide what is right or wrong? Or will there be a section in the Department to deal with this? Will the inspectors merely put in reports and will the decision be a Ministerial decision, perhaps, following a memorandum from a principal officer? Or, as is the case with some other legislation, will these inspectors be the persons who prosecute if there is such a thing as prosecution?

There is also the question of regard being had to the average weight. You begin to weigh 1-lb. or 2-lb. packets of a commodity and you can get a laboratory balance and work down to a very tiny variation that is not noticeable. It would take five minutes to weigh each packet and that would be impracticable. You can go to the other extreme and use quite a crude scale that would quickly give weights to within half an ounce. Under the regulations made by the Minister the variations in weight allowed should be shown on the packet so that when a stream of packets is being produced, if the packer and his employees are honestly trying to weigh 1-lb. packets and the weight varies one-eighth of an ounce up or down over 1,000 packets, this would be accepted as normal. Like the Apollo astronauts we cannot be gods all the time. There should be a tolerance. A variation of, say, a quarter-ounce or so, should be acceptable as good weighing and an indication that every effort is being made not to contravene the Act. The Bill is really one for Committee discussion and I wish to put down at least two amendments. Therefore, I do not wish all stages to be passed today.

Dr. O'Donovan

I have only a few remarks to make on this Bill. So far as I can see the Bill is comprehensive in respect of the limited matters with which it deals but I want to speak about a matter mentioned in the House about a month ago to the great annoyance of the Parliamentary Secretary who was then sitting in the Minister's seat. I refer to the fact that when the Du Pont company of the US were establishing a plant in this country they wanted to establish it in the Republic of Ireland. They found our trade marks law was so out of date that they could not do so with safety and therefore they established the plant east of Derry in the Six Counties. I shall not say very much about this matter and indeed if it had not been for the fact that the Parliamentary Secretary said at the time that I was suffering from senility I possibly would not have referred to it at all.

At the end of his speech the Minister said: "In recommending this Bill I should say that I have in the course of preparation a further and more comprehensive Bill to protect the consumer against false trade descriptions not covered by the 1887 Act." The Department of Industry and Commerce are very highly geared and it is not a lack of staff that prevents them from doing certain tough jobs. For example, our company law was very much out of date—to put it mildly. Until 1963, we were working under the Companies Act of 1908, a subject about which I knew more than perhaps I know about this particular subject. But I do not think there is any doubt about what I have said because I was told it by the legal representative of the Du Pont company here in Dublin at the time.

It is not good enough that a State Department should allow this sort of thing to happen. If there was not a loss to the 32 counties there was certainly a grave loss to the 26 counties by the fact that this huge manufacturing business was established east of Derry. I always try to have some constructive reason for talking or writing about things and my reason for rising is to express the hope that this more comprehensive Bill to which the Minister referred will not be delayed unduly and will not take as long, for example, as the Companies Bill which was in preparation for donkey's years in his Department.

Mr. P. Barry

While this Bill is good as far as it goes I do not think it goes far enough. It is time we had a new look at the merchandising of goods and either a new series of Bills or one comprehensive Bill such as the Minister has referred to. I should like the Minister to extend the control of marking of goods to the advertising used to sell goods. I do not know if this is possible under the Bill or not. I know this Bill is designed to protect the consumer and it mentions the manufacturer or packer of goods. Certainly, its prime concern should be consumer protection. But there is a handler of merchandise between the manufacturer and the consumer and he also should come within the scope of the Bill. He should not be allowed, for instance, to put a notice on a pile of goods in a super-market giving the impression, if not stating outright, that there is more in quantity and less in price than that stated on the package. What is called impulse buying plays a very large part in the retail trade and consumers should be protected in supermarkets which are now vast outlets accounting for the sale of a very high percentage of goods. The consumer at that level should be protected. I do not know if this is true—the Minister probably knows—but I am told that in certain cases the same size packet as would be familiar to the consumer by its appearance, even though marked with the correct weight of the contents, is sold to big chains of supermarkets where it can be sold for a lesser amount of money. I mean that a commodity which would normally cost 2s per lb in a packet of certain dimensions is sold by a chain of supermarkets who have given an order to a manufacturer to pack 12 ounces in those packages that are the same size as the normal 1 lb packet, even though in this case the packets are marked "12 ounces". Then there is a big splash in the supermarkets: "Special offer this week—two for the price of one" or something like that.

In many cases the customers buy with their eyes. So long as they are reasonably sure by a cursory glance that they are buying the usual size packet they do not examine packets in detail. There is also a belief that manufacturers make special offers and put a lesser quantity of the commodity into the packets, saying nothing on the outside about the quantity. They would probably be brought to heel under this Bill.

Is it sufficient under the Bill that imported goods should be over-stamped with weights and measures applying in this country or must this be done at source so as to be part of the container in which they are imported? Would special containers have to be made for this country in the exporting country? There would seem to be a slight contradiction if that is so because goods from here can be exported in cartons marked according to the custom of the country from which they are exported. There is a slight doubt here that might be cleared up. The market here is relatively small compared with, say, Germany, America or England and to make a special run of cartons solely for the Irish market would probably not be an economic proposition for manufacturers here. Indeed, it might be that to make a special run for export might be uneconomical here. I often feel we are a bit too ready to acquiesce to the wishes of buyers in other countries. We should just say: "This is the way we make it and this is the way we sell it and if you do not want it, well and good". We should not be too ready to acquiesce except where their laws are concerned. Finally, I hope that before the new weights come in the Minister will consider making an order, say, for the two years previous to that for dual weights to appear on cartons so that consumers can familiarise themselves with the new weights.

Mr. Colley

I thank the House for the measure of support this Bill has received. As Deputy Donegan has said, the main debate on this Bill should take place on the Committee Stage. However, there are some points which have been mentioned to which I should refer. A number of Deputies referred to the more comprehensive legislation which I mentioned at the end of my introductory speech. I should like to say in that regard that work on it has been going on for quite some time and will go on for some time more. I am not in a position to say when it will be completed but certainly I would not visualise that it would be, as Deputy O'Donovan suggested, for years and years. I do not think it will take that long but it will not be coming along immediately as there is still more work to be done on it. I would also say in regard to a point made by Deputy Desmond that, while it will contain a number of provisions similar to the corresponding British Act, it will not be exactly the same; there will be certain differences in some cases in regard to things that perhaps we do not consider need to be covered but which the British do, and in some other matters we will be making provisions which they have not made.

With regard to the question of whether this Bill should apply to goods on the export market the position is that it is not intended that the provisions would apply to goods intended for the export market. The reason for that wording is that checking might be done in the factory where, perhaps, it could not be ascertained where the goods were going. In other words, if we were going to check goods being sold on the home market the checking might be done in the factory rather than at the point of sale. But it is intended that in general goods being sold on the home market would be subject to any orders made under this Bill, although we do contemplate that in circumstances in which a manufacturer has prepared goods for the export market and for good and sufficient reason—that is deemed to be good and sufficient by the Minister for Industry and Commerce and not by the manufacturer—finds it necessary to sell those goods on the home market rather than on the export market as intended, he could be exempt from an order here. This is merely to meet the special case. In general it is intended that goods sold on the home market and being subject to an order under this Bill will be subject to an order made under this Bill even if they are being sold on the export market as well. With regard to a point made by Deputy Barry about goods being imported and whether a special run of cartons would be necessary to comply with this, this is not visualised. The overstamping in compliance with an order under this Bill would suffice provided that overstamping would comply with the provisions of the order in regard to visibility and position on the packet——

Mr. P. Barry

It is the importer's obligation to do this?

Mr. Colley

Yes.

Mr. Donegan

I am trying to think in terms of, say, canned goods coming in. This means that at the point of importation the importer will have to open all the cases and stamp them individually. They could be cans of fruit.

Mr. Colley

I do not think that that is the way in which it will work. Remember, there is similar legislation in a number of other countries and as far as I know this is not what happens. What happens is that the importer makes sure he is dealing with a reputable firm and has the assurance of that firm that the goods he is importing do comply with what is stated in the relevant order. If he is satisfied to that effect then presumably he will apply the label that is prescribed. It is a matter for the individual importer to decide whether he can satisfy himself on this or not. His obligation is to comply with the order and ensure that a consumer purchasing the goods he imports is not misled. If he cannot ensure this then he has to decide that he is not going to import those goods. However, if he is dealing with a reputable supplier I do not think he will have any problem.

Deputy Cunningham mentioned a point about goods which appear to weigh, say, 1 lb but which do not and I think Deputy Barry referred to the same problem in a slightly different way. It is because of this that we are providing in the Bill that it will be possible in the case of particular goods to prescribe that they may be sold only in certain standard quantities. Where it is traditional and convenient to sell a 1 lb or ½ lb quantity we visualise that it may be prescribed by the Minister that they will be sold only in 1 lb or ½ lb quantities to get over this very problem of people selling something that looks like 1 lb but which is not, which is just under it. It is very difficult for the consumer to detect this. This is why we are making the provision for prescribing the standard quantities in which goods may be sold.

Deputy Cunningham also referred to the metric system and as I indicated, or certainly intended to indicate, it is intended that in appropriate cases the orders made under this Bill would prescribe quantities in metric terms as well as in imperial terms for what we might call a transitional period and then in due course only in metric terms, on the change over to the metric system. The House can be assured that every effort will be made to see that the transitional period is sufficiently long to allow people to adjust to the new method of measurement and to ensure that they are not misled by reason of weights being quoted only in metric terms. Deputy Donegan I think has received the same representations as I did, judging by some of the points he raised. I should tell him that in regard to those representations I am accepting some of the points made and intend to bring in some amendments on the Committee Stage to deal with them. I am not accepting all of them but no doubt when they are circulated if Deputy Donegan is not happy with what he sees he will put down his own amendments and we can discuss them here. In particular I intend to introduce an amendment in regard to the question of consultation to which he referred.

Mr. Donegan

That would be very helpful.

Mr. Colley

I do not know if the Deputy will be happy with the wording but he can decide on that. I cannot circulate the amendments until this Stage has been completed. I will, of course, be prepared to look at the amendment which Deputy Donegan says he intends to put down to guard against the possibility of someone being prosecuted for inadvertent breach of the orders. However, he did say he does not intend to take the teeth out of the Bill, and it is very important that we should not do this. If we can produce an amendment which will not take the teeth out, which will continue to protect the consumer and at the same time protect somebody who is inadvertently in breach of an order, I shall be prepared to consider such an amendment sympathetically.

I would point out, however, that it is not unreasonable to expect that the courts, in dealing with a prosecution under this Bill, would take the surrounding circumstances into account. If, for instance, a machine had gone out of order, which was one of the circumstances envisaged by Deputy Donegan, this would be a very relevant matter, as far as a prosecution would be concerned, for the court to take into account. The general principle in regard to any prosecution under this or any similar legislation is that there must be an intent to commit an offence. I am not laying that down as the final word; this is the general principle and there are exceptions to it, but nevertheless the House can take it that, in general, where extenuating circumstances exist the court will take such circumstances into account. Anyway I shall be prepared to look with an open mind at any amendments, designed to do what Deputy Donegan said he wanted to do, that may be put down.

Deputy Donegan also mentioned a situation in which rival commodities are sold at the same weight but containing a different number of articles. Such a situation would come within the ambit of the Bill and it would be intended in appropriate cases to deal with those on the lines to which he referred in an order; in other words, while the order might say the weight must be shown, in appropriate cases it would also say that the number of articles must be shown, because otherwise, as he said, the consumer could be misled.

Deputy Cunningham also referred to some abuses which exist at present in regard to prices. This Bill does not deal with that kind of abuse. Such matters as dual pricing and misleading advertising are items which will be dealt with in the forthcoming Bill to which I have referred.

I have considered the question of averaging of quantities and have come to the conclusion that it is not necessary or desirable to provide for average weight, but it has been provided in section 3 (5) that a reasonable number of similar articles should be tested or inspected at the same time as the particular inspection on which, say, the prosecution would be based, and that the results of these tests would be available to the court if required in proceedings for an offence in relation to the marking of quantity or packing in a standard quantity. This protects the manufacturer or packer as well as he can reasonably expect, but there are dangers in accepting the idea of average weight. There is also provision for a certain tolerance which would be necessary in certain kinds of goods and that provision is in section 2 (8).

The Bill will, I hope, be of considerable assistance to consumers but also to the bona fide manufacturers, importers and packers of goods who constitute the vast majority of manufacturers, importers and packers. Not alone will the consumer benefit but the bona fide manufacturer, importer and packer will also benefit very considerably by having some protection against the kind of unfair competition to which he may be subjected at present by unscrupulous operators. Therefore both the consumer and the vast majority of manufacturers and others have a special and vested interest in the provisions of this Bill and in their enforcement.

In those circumstances I suppose it is not surprising that the Bill has received a welcome on all sides of the House. I thank the House for that and would suggest that we dispose of this Stage of the Bill now and then have a look at the amendments which may be circulated for the Committee Stage when we can perhaps deal with the provisions in much more detail and more satisfactorily having regard to the nature of the Bill.

Question put and agreed to.

Dáil Éireann debate -
Wednesday, 15 Apr 1970