What to do if you've been misled by a trader (original) (raw)

For advice that’s more specific to your situation, our paying members can contact our Consumer Advice Line. Our advisers will talk you through your rights and help you resolve problems with a retailer or service provider.

The Fair Trading Act (FTA) protects you against being misled or treated unfairly by traders or shops. The Act prohibits misleading and deceptive conduct, unsubstantiated claims, false representations, unfair terms in standard consumer contracts and certain unfair practices.

It also sets out when information about certain products must be disclosed to consumers, and helps ensure products are safe.

The FTA applies to everyone in trade. As well as traders and shops, the Act covers government agencies and state-owned enterprises. The FTA does not generally apply to private sales.

The difference between the FTA and the Consumer Guarantees Act (CGA) is that, in general, the FTA covers claims about products and services before they’re bought and the CGA covers the quality of those products and services after they have been bought.

Your rights

Misleading or deceptive conduct

If you’re told things by a retailer that give you a false impression about goods or services you’re buying, then you have been misled or deceived. For example, if you discover that bags advertised as leather are actually vinyl, or if you buy faulty goods and the shopkeeper incorrectly tells you that you’re not legally entitled to a refund, replacement or repair.

Unsubstantiated representations

Retailers can’t make unsubstantiated representations about a good or service: they must have reasonable grounds for making any claim. For example, if you’re told a product is 30% more energy efficient than another, the retailer should have good evidence to back this up.

False representations

When information given to you about goods and services is not true, then a false claim has been made. For example, if you buy a shirt with a “Made in Italy” label and find it actually came from Korea.

The word “representations” covers any situation where a trader claims something about their product or services, either verbally or in writing. It can even cover cases where a trader omits information. For example, neglecting to mention that prices exclude GST.

Unfair practices

Unfair practices are selling methods that mislead you. Unfair practices are illegal under the FTA and include:

• Offering prizes or gifts without intending to supply them, or not supplying them as offered.
• Bait advertising - when a seller advertises particular goods or services at a particular price, and doesn’t intend ,or is unable to, supply or sell reasonable quantities at that price.
• Making misleading claims about business activities. For example, claiming you can make $1000 a week selling cosmetics from home, in circumstances where you would have to work about 20 hours a day, 7 days a week to make that sort of money.
• Pyramid selling schemes. These schemes make money by recruiting people, rather than selling goods or services and often mislead recruits about potential financial returns.
• Referral selling – where a seller convinces you to buy a product or service by promising a reward if you provide the names of other buyers and they also buy the product or service.
• Demanding or accepting payment without intending to supply the goods or services, or without believing (on reasonable grounds) they’ll be ready at a specified time, or intending to supply materially different goods or services.
• Demanding payment or advising they have a right to payment for unsolicited goods or services.
• Using physical force, harassment or coercion when supplying goods or services.

Unfair contract terms

The FTA also bans unfair terms in standard-form consumer contracts. A term is unfair if it:

• causes a significant imbalance in the parties’ rights and obligations,
• is not reasonably necessary to protect the party that would benefit from the term, and
• would cause detriment to a party.

For example, a term that permits one party to vary the price payable under the contract without giving the consumer the chance to end the contract would be unfair.

Information disclosure

The FTA makes it mandatory for traders to give you specific information about uninvited direct sales (door to door marketing), extended warranties, laybuy sales and auctions. The information must be in writing, in plain language, legible, presented clearly, and contain the required following information:

• Uninvited direct sales (door-to-door and telemarketing) – uninvited direct sale agreements should include a clear description of the goods or services, a summary of your right to cancel the agreement, the trader’s contact details, your name and street address.
• Extended warranties – extended warranty agreements should include a summarised comparison between the guarantees and the protections provided by the extended warranty agreement, a summary of the consumer’s rights and remedies under the CGA, a summary of your right to cancel the agreement, and the warrantor’s contact details.
• Layby sales – layby sale agreements should include a clear description of the goods, a summary of your rights to cancel the agreement, whether or not a cancellation charge will be imposed and what the amount or calculation of the charge will be, and the supplier’s contact details.
• Auction sales – terms of an auction must include information about whether the vendor of the goods is selling the goods in trade, whether the sale is subject to a reserve price, and whether vendor bids made by or on behalf of the vendor are permitted.

The FTA also includes provisions for “consumer information standards” which set out information that must be disclosed about specific products. These standards are made as regulations and are enforced by the Commerce Commission.

Currently there are 6 consumer information standards.

1. Consumer Information Standards (Country of Origin (Clothing and Footwear) Labelling) Regulations 1992: These require most new clothing and footwear sold in New Zealand to be labelled with their country of origin. The label must be in English, permanent and positioned so consumers can see it easily.
2. Consumer Information Standards (Fibre Content Labelling) Regulations 2000: These require all new textile goods to be labelled with their fibre content. Carpets are covered by the regulations, but second-hand goods aren’t. The label must be positioned so consumers can easily see it.
3. Consumer Information Standards (Care Labelling) Regulations 2000: These set out the words, phrases and symbols which must be used to tell consumers the correct way to wash, dry clean and care for their clothes and fabrics.
4. Consumer Information Standards (Used Motor Vehicles) Regulations 2008: These require car dealers to display a “consumer information notice” to all used cars available for sale. The regulations specify the information that must be disclosed on the notice. See our car buying guide for more information.
5. Consumer Information Standards (Water Efficiency) Regulations 2010 and 2017: These require water-using products, such as washing machines and dishwashers to have a water efficiency rating label, either next to the product or at the point of sale. The water efficiency labelling scheme applies to 6 product classes: washing machines, dishwashers, lavatories, showers, taps, and urinals.
6. Consumer Information Standards (Origin of Food) Regulations 2021: These standards have applied since 12 February 2022 and require businesses to disclose where certain fresh, frozen, and thawed food comes from. They apply to cured pork products and single-ingredient fruit, vegetable, fish, seafood, and meat that is no more than minimally processed.

Product safety

The FTA gives the Minister of Commerce and Consumer Affairs the power to ban unsafe products or order their recall. A trader can also be instructed to inform the public why and how the goods are unsafe, offer to repair or replace the goods, or provide refunds. When a trader voluntarily recalls a product, they must report the recall to the Ministry of Business, Innovation and Employment within 2 working days. The ministry is responsible for publishing the recall notice on its website.

Common problems

Quotes and estimates

A supplier must be careful when providing quotes or estimates and customers are entitled to rely on the prices given. A quote is an offer to do a job for a set price. If a quote is accepted, the work must be done for that price, unless the parties agree to change it.

An estimate is the closest price or range of prices that can be given, based on past experience. If the final price is going to be significantly different from the estimate then the business should make this very clear to the customer. In our opinion, anything more than 20 percent is significant.

If a business is going to charge you for giving a quote or estimate they must tell you this before agreeing to provide it.

GST extra

If GST is not included in a quote or advertised price, this must be made clear. If it isn’t, you can argue that you should just pay the figure quoted. Companies can be prosecuted and fined for advertising GST exclusive prices and failing to make it clear the prices didn’t include GST. It is still common for tradespeople to exclude GST. When you first ask for a quote, check the GST status.

Price comparisons

You see an ad saying “was 199,nowjust199, now just 199,nowjust99 - save 100!”Butyouboughtonebeforethesalestartedandthepricewasonly100!” But you bought one before the sale started and the price was only 100!”Butyouboughtonebeforethesalestartedandthepricewasonly129. Price comparisons like this must be based on actual market prices. In this case, the item should have been 199forareasonabletimebeforereduction.Iftheearlierpricewasregularly199 for a reasonable time before reduction. If the earlier price was regularly 199forareasonabletimebeforereduction.Iftheearlierpricewasregularly129 then the comparison may be misleading and a breach of the FTA.

Debt collection fees

If you couldn’t pay a bill on time and the debt collectors have been called in, you don’t have to pay a debt collection fee on top of what you owe unless you were made aware of this charge before you incurred the debt. However, if you are subsequently taken to court for continued non-payment of your debt, the court can order you to pay extra costs.

Packaging

Packaging must not be misleading or deceive you about the nature, quantity or size of the product.

“Interest free” finance

The price of an “interest free” or “free credit” offer should be the same as the cash price. If there’s going to be any additional cost, this must be made clear. For example, an ad may say “interest free, but credit insurance applies”.

Pricing mistakes

The Act recognises a “reasonable mistake”.

If an item is advertised for sale at a particular price, but you get to the shop only to be told that there has been a mistake and the item is actually more expensive, the trader doesn’t have to sell you the item for the advertised price. However, if a particular trader is always advertising products at the wrong price, they may be in breach of the FTA.

In the past, a supermarket has been convicted and fined for charging higher prices at the checkout than were on display.

Special conditions

Telling a story in fine print at the bottom of an ad, or by way of a small notice inside a store, won’t save an ad from breaking the FTA. As a general rule, fine print can elaborate on the main selling message, but it should not be used to contradict it. Traders are also at risk if they advertise a “price” in TV promotions, together with an 0800 telephone number, but flash extra delivery or insurance charges only briefly on the screen. This is misleading, since the product can’t be bought unless you pay these charges, which may have been overlooked.

Overseas mail order

The FTA applies to all traders who operate in New Zealand, including organisations based overseas that advertise here. But enforcing the FTA could be difficult with a company that has no physical presence or representatives here. It can be very difficult to prosecute or get redress from rogue traders not based in New Zealand.

Delivery of goods

If a business can’t supply goods or services within a specified time or a reasonable time then they must not accept payment. What is reasonable depends on the circumstances. Generally, what is normal practice for that industry or situation is considered to be the reasonable standard.

Making a complaint

If you’ve been misled about a product or service, first try to sort it out with the trader. But if you can’t make headway, you can take action under the FTA.

You can also apply to the High Court for an injunction to stop the FTA being breached.

The best option for consumers with small claims is civil action, most often through a Disputes Tribunal. They can hear cases for claims up to $30,000. A tribunal can award civil damages, which could include getting compensation or your money back. But only the courts can impose fines.

You could also make a complaint to the Commerce Commission.

The Commerce Commission

The FTA is enforced by the Commerce Commission. The Commission can take traders to court if it thinks they have breached the FTA.

The Commission doesn't act on every complaint it receives, but it does log all complaints, and this log provides a guide to deciding which cases it will take up.

The Commission generally becomes involved where there is a blatant abuse of the law, or there is significant detriment to either traders or consumers, or a precedent needs to be established.

Penalties under the FTA

Under the FTA, companies can be liable for fines up to 600,000andindividualsupto600,000 and individuals up to 600,000andindividualsupto200,000. Also, any individual who breaches the pyramid scheme provisions can be fined up to $600,000.

Traders also risk being prosecuted by the Commerce Commission for failing to comply with consumer information standards and rules relating to door-to-door sales (uninvited direct sales), extended warranties, layby sales and auctions. Penalties for breaches are limited to 10,000foranindividualand10,000 for an individual and 10,000foranindividualand30,000 for a company.

The Commission has the option of issuing an infringement notice where a trader hasn’t given consumers the required information about their rights in relation to door-to-door, extended warranty and layby sales. The maximum infringement notice fine is $2000.

Infringement notices can also be issued for breaches of a consumer information standard and where an online trader fails to disclose that they’re “in trade”.

Traders who contravene the FTA may also face civil penalties. The range of penalties includes injunctions, orders to issue corrective advertising and awards of damages.