Consumer Protection Bill 2023

No. of 2023 Consumer Protection Bill Saint Christopher

and Nevis

SAINT CHRISTOPHER AND NEVIS

No. of 2023

ARRANGEMENT OF SECTIONS

Section

PART I

PRELIMINARY

1. Short title and commencement

2. Interpretation

3. Purpose

4. Application

PART II

CONSUMER PROTECTION BOARD

5. Establishment of Board

6. Constitution of Board

7. Disqualification

8. Functions of Board

9. Powers of Board

10. Acting members

11. Resignations

12. Revocation of appointment

13. Publication of names of members

14. Procedure for meetings

15. Seal

16. Protection of members

17. Disclosure of interest

18. Remuneration of members

19. Expenses of the Board

20. Independence

PART III

RECEIPT AND INVESTIGATION OF COMPLAINTS

21. Complaints

22. Protection of persons making complaint

23. Receipt of complaint by the Department

24. Investigation by the Department

25. Power to investigate not precluded

26. Power to obtain information, documents and evidence

27. Report to Board

28. Rules by the Director

29. Receipt of report by the Board

30. Rejection of complaint by the Board

31. Informal disposal

32. Hearing instituted by the Board

33. Non-attendance of parties

34. Recommendation of complaint for hearing

35. Rights and obligations of person summoned

36. Documents to be received as evidence

Complaints and Disputes Regarding Goods

37. General procedure for resolving complaints and disputes in relation to goods

38. Alleged defects requiring proper analysis and laboratory report

39. Receipt and distribution of laboratory report

40. Procedure subsequent to receipt of laboratory reports and responses

Complaints and Disputes Regarding Services

41. General procedure for resolving complaints and disputes in relation to services

Findings, Completion and Decisions of the Board

42. Decisions of the Board

43. Fixed penalties and Orders of the Board

44. Completion of hearing

45. Registration of Order of the Board

46. Options after issue of Order

47. Payment of Order

PART IV

APPEALS TRIBUNAL

Composition, Functions, Powers and Proceedings

48. Establishment of Appeals Tribunal

49. Constitution of Appeals Tribunal

50. Tenure

51. Resignation

52. Revocation of appointment

53. Temporary members

54. Publication in the Gazette

55. Secretary of Appeals Tribunal

56. Remuneration and allowances

57. Hearings, deliberations and decisions

58. Functions and powers of Appeals Tribunal

59. Proceedings of Appeals Tribunal

60. Validity of proceedings

PART V

TERMS OF CONSUMER AGREEMENT

61. Written terms to be plain and intelligible

62. Unfair terms

63. Excluding, restricting or modifying liability

64. Indemnity from liability

65. Satisfying reasonableness where agreement terminated

66. Liability for breach

PART VI

CONSUMER RIGHTS

67. Right reserved

68. Protection of consumer right

69. Substantive and procedural rights

70. Right to select supplier, goods or service

71. Right to choose and examine goods

72. Right to accept goods or service

73. Right in relation to unsolicited goods or service

74. Right to authorize service

75. Right of consumer’s estate to choose whether to uphold agreement

76. Right to cancel reservation

77. Right to rescind or cancel agreement

78. Right with respect to delivery of goods or supply of service

79. Right to information in plain and understandable language

80. Right to information in English language

PART V1I

DUTIES OF SUPPLIERS

81. Registration of supplier

82. Identification of supplier

83. Product labelling and trade descriptions

84. Disclosure of environmental facts

85. Disclosure of used, re-conditioned, re-built or re-made goods

86. Quality of goods or service

87. Expiry date, etc. to appear outside packaged food products

88. Prohibition respecting selling expired goods

89. Charging consumer for assistance

90. Information to consumer

91. Disclosure of price of goods or service

92. Warranties

91. Measurement of goods

93. Written consumer agreement

94. Unlawful provisions of consumer agreement

95. Conditions of demanding and accepting payment

96. Over-selling and over-booking

97. Management of pricing

98. Sales record

99. Utility of sales record

100. Delivery date

101. Approved and non-approved service

102. Damage resulting from use of goods or service

103. Damaged goods sold to consumer

104. Return of defective goods

105. Loss or damage of defective goods or negligence of manufacturer

106. Return of materially different goods

107. Return of electrical goods

108. Suppliers offering repair services

109. Promotion of goods or services

110. Goods or services acquired by instalment

111. Apportionment of payment where service not received

112. Supplier purporting to act on Bill of Sale

113. Exclusion or restriction from liability from breach of contract and claims

114. Liability for breach of duty or obligation

115. Mediation

PART VIII

UNFAIR TRADE PRACTICES

116. False, misleading or deceptive representation

117. Restrictive trade

118. Unfair method, deceptive practice or misleading public

119. Misleading public as to nature of goods or services

120. Unreasonable transactions

121. Unfair or unjust transactions

122. Unconscionable conduct

123. Renegotiation of terms

124. Bait advertising

125. Dual pricing

126. Referral selling

127. Pyramid selling

128. Non-delivery of goods or services on contracted date

129. Printing, publishing, distributing, broadcasting or telecasting

130. Rescission

131. Defences for contravention of this Part

PART IX

CONSUMER SAFETY

132. Interpretation of “consumer safety”

133. General consumer safety requirement

134. Information on goods with inherent risk

135. Consumer safety regulations

136. Contravention of consumer safety regulations

137. Declaration of unsafe goods

138. Imposition of permanent ban

139. Establishment of a regional alert system

PART X

RECALL OF GOODS

140. Voluntary recall

141. Compulsory recall

142. Repair and replacement of goods

143. Refund

144. Effect of recall notice

145. Loss or damage caused by contravention of recall notice

146. Opportunity for hearing

147. Recommendation of the Board

148. Director to have regard to recommendation of the Board

149. Exception in case of danger to public

150. Copies of notices

151. Notification of persons outside Saint Christopher and Nevis

152. Right of appeal against notice

153. Certain action not to affect insurance contracts

PART XI

PRODUCT LIABILITY

154. Interpretation: Part XI

155. Liability for defects

156. Defect inferred

157. Damage giving rise to liability

158. Prohibition on exclusions from liability

159. Defences in civil proceedings

PART XI

DISTANCE SELLING

160. Interpretation: Part XII

161. Application: Part XII

162. Agreement regarding distance selling contracts

163. Prior information requirements

164. Acceptance or refusal of distance contract

165. Right of cancellation

166. Payment by credit or debit card

167. Performance

PART XIII

MISCELLANEOUS

168. Reasonableness

169. Ambiguities to benefit consumer

170. Trade coupons and similar promotions

171. No refund signs, restocking etc.

172. Promotional competitions

173. Prohibition and privilege

174. Secrecy

175. Channel of communication

176. Offences

177. Offences by body corporate

178. Protection of officers of the Department

179. General penalty

180. Amendment of Schedules

181. Regulations

182. Repeal

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

SCHEDULE 5

No. of 2023 Consumer Protection Bill Saint Christopher

and Nevis

SAINT CHRISTOPHER AND NEVIS

No. of 2023

A BILL to provide for the promotion and protection of consumer interests, in relation to the supply of goods and the provision of services; to ensure protection of life, health and safety of consumers; the establishment of a Consumers Affairs Department; and for connected purposes.

BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the National Assembly of Saint Christopher and Nevis and by the authority of the same as follows:

PART I

PRELIMINARY

1. Short title and commencement

(1) This Act may be cited as the Consumer Protection Act, 2023.

(2) Subject to subsection (3), this Act shall come into force on a date to be fixed, by the Minister, by Order published in the Gazette.

(3) The Minister may fix different dates for the coming into force of different Parts or sections of this Act.

2. Interpretation

(1) In this Act

“acquire”, in relation to –

(a) goods, includes obtaining by way of gift, purchase, or exchange, the taking on lease or hire purchase;

(b) a service, includes accepting the provision of a service;

“acquisition of goods” includes a reference to the acquisition of

property in, or rights in relation to goods, in pursuance of a

supply of the goods;

“advertisement” means any form of communication made to the public or a section of the public for the purpose of promoting goods or a service;

“Appeals Tribunal” means the Consumer Protection Appeals

Tribunal established under section 48;

“authorized officer” means a public officer designated as an authorized officer by the Minister in writing;

“Board” means the Consumer Protection Board established under section 5;

“Bureau” means the Saint Christopher and Nevis Bureau of Standards established under section 3 of the National Bureau of Standards Act, Cap. 23.15;

“business” includes a professional practice or any other undertaking that is carried on for gain or reward or in the course of which goods or services are supplied otherwise than free of charge;

“CARICOM Member State” means a State listed in Schedule 1;

“Chairperson” means the Chairperson of the Board appointed under section 6;

“Community” means the Caribbean Community established by article 2 of the Revised Treaty and includes the Caribbean Single Market and Economy established by the Revised Treaty;

“commercial purpose” in relation to a consumer

(a) means all cases where goods are purchased for being used in any activity directly intended to generate profit;

(b) does not include use by a person of goods bought and used or a service availed exclusively for the purposes of earning a livelihood by means of self- employment;

“competent officer” means an officer of the supplier authorized by the supplier to conduct specific business on behalf of the supplier;

“complainant” means

(a) a consumer;

(b) any voluntary consumer association registered under any law for the time being in force;

(d) one or more consumers, where there are numerous consumers having the same interests;

(e) in case of the death of a consumer, his or her legal heir or representative;

who makes a complaint;

“complaint” means any allegation made by a complainant that

(a) an unfair term or an unfair trade practice has been adopted

by a supplier;

(b) goods bought by him or her or agreed to be bought by him or her is defective;

(d) the supplier has charged for the goods or for the services mentioned in the complaint at an amount in excess of the price

(i) fixed by or under any law for the time being in force,

(ii) displayed on the goods or any package containing the goods,

(iii) displayed on the price list exhibited by the supplier,

(iv) agreed between the parties;

(e) goods which will be hazardous to life and safety when used are being offered for sale to the public

(i) in contravention of any standard relating to the safety of such goods as required to be complied with, by or under any law for the time being in force; and

(ii) the supplier ought to have known with due diligence that the goods so offered are unsafe to the public;

(f) a service which is hazardous or likely to be hazardous to life and safety to the public when used, is being offered by the supplier where such person ought to have known with due diligence that the service is injurious to life and safety;

(g) the supplier has contravened a provision of this Act, which is not included in paragraphs (a) to (f);

“consumer agreement” means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services to a consumer for payment;

“consumer” means a person who

(a) buys any goods under an agreement or transaction and includes any other user of the goods, when such use is made with the consent of the person who buys the goods, but does not include a person who obtains the goods for resale or for any commercial purpose;

(b) hires or avails any service under an agreement or transaction and includes any other beneficiary of the service, when the service is availed with the consent of the hirer, but does not include a person who hires or avails the service for any commercial purpose;

“Court” means the Magistrate’s Court or High Court;

“defect” in relation to goods, means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the supplier in any manner whatsoever;

“Department” means the department responsible for consumer affairs within the Ministry responsible for consumer affairs;

“Deputy Director” means the Deputy Director of the Department appointed as such by the Public Service Commission;

“Deputy Chairperson” means the Deputy Chairperson appointed under section 6;

“Director” means the Director of the Department appointed as such by the Public Service Commission;

“document” includes an electronic record;

“goods” include all kinds of property other than immovable property, securities or money;

“hire-purchase agreement” means an agreement for the purchase of goods by instalment payments and under which the person who agrees to purchase the goods is given possession of the goods on hire on condition that such person pays the agreed amount in periodical instalments and the owner agrees that the property in the goods is to pass to such person on the payment of the last of such instalments;

“member” means a member of the Board;

“Minister” means the Minister responsible for consumer affairs;

“negligence” includes the breach –

(a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care and to exercise reasonable skill in the performance of the contract; and

(b) of any common law duty to take reasonable care;

“payment” means consideration of any kind, including a deposit fee;

“person” includes a body corporate or an unincorporated body;

“price” includes any representation that may reasonably be inferred to be an indication of the cost of the goods or services to the consumer;

“Revised Treaty” means the Revised Treaty of Chaguaramas signed at Nassau, The Bahamas on 5 July 2001 the text of which is set out in the Caribbean Community Act, Cap. 19.21;

“Secretary” means the Secretary to the Board referred to under section 6;

“service” includes

(a) a service of any description which is made available to consumers;

(b) the provision of facilities in connection with banking, finance, insurance, transport, processing, boarding or lodging, housing construction, entertainment, amusement or the supply of news or other information or media services, but does not include the rendering of any service free of charge or under a contract of personal service or employment services;

“sustainable consumption” means the use of goods and service as required to meet basic needs and improve the quality of life without jeopardizing the needs of future generations;

“supplier” means

(a) a seller of goods or a service;

(b) a person providing a service;

(c) any person responsible for the provision of goods or services including a manufacturer, producer or distributor or the agent of a manufacturer, producer or distributor; or

(d) a competent officer;

“supply of a service” includes

(a) the undertaking and performance for gain or reward of engagements for any matter other than the supply of goods; and

(b) the rendering of a service to order and the provision of a service by making the service available to potential consumers;

but does not include the rendering of a service under a contract of employment;

“supply or acquisition of goods or services” includes a reference to

(a) an agreement to supply or acquire goods or services;

(b) the supply or acquisition of goods or services together

with other property or other services or both.

(2) A reference in this Act to the Director is a reference to the Deputy Director where the Deputy Director acts in the absence of the Director.

3. Purpose

The purpose of this Act is to promote and advance the social and economic welfare of consumers by

(a) establishing a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible;

(b) promoting fair business practices;

(i) unfair, unconscionable or otherwise improper trade practices, and

(ii) deceptive, misleading or fraudulent conduct;

(d) promoting environmental responsibility in consumer markets;

(e) improving consumer awareness and information and

encouraging responsible and informed consumer choice and behaviour; and

(f) providing for an accessible, consistent, harmonized, effective and efficient system of redress for consumers.

4. Application

(1) Subject to subsection (3), this Act applies to all persons involved in trade or business whether through the purchasing or supplying of goods or services.

(2) In determining whether this Act applies to a body or transaction, a court or tribunal shall consider the real substance of the body or transaction.

(3) The Minister may by order, subject to negative resolution, exempt categories of trade or business from the application of this Act.

PART II

CONSUMER PROTECTION BOARD

5. Establishment of Board

There is established a Consumer Protection Board.

6. Constitution of Board

(1) Subject to subsections (2) and (3), the Board consists of no more than five members to be appointed by the Minister after consultation with the Director.

(2) The Board shall consist of:

(a) a member who has knowledge and experience in industry;

(b) a member who has knowledge and experience in commerce;

(d) a member who has knowledge and experience in public administration;

(e) a member who has knowledge and experience in consumer protection.

(3) The Minister may appoint one of the members of the Board to be the Chairperson and another member to be the Deputy Chairperson of the Board.

(4) The Director is an ex officio member of the Board and the Secretary to the Board and in his or her absence, the Chairperson may delegate any other member to act as the Secretary.

(5) A member of the Board may hold office for a period not exceeding three years, and is eligible for reappointment.

7. Disqualification

A person is disqualified from being a member of the Board if that person

(a) is declared by a court to be a bankrupt;

(b) is declared by a court or certified by a registered health practitioner to be physically or mentally incapacitated;

(c) has been convicted of a criminal offence except where the offence is a minor traffic offence or has been spent under the Criminal Records (Rehabilitation of Offenders) Act, No. 14 of 2014; or

(d) is a member of Parliament.

8. Functions of Board

(1) Subject to subsection (3), the Board shall

(a) receive complaints from the Department;

(b) monitor the investigation of a complaint of the Department;

(d) where necessary, seek to resolve disagreements between a consumer and supplier in relation to goods and services;

(e) hear, deliberate and resolve consumer complaints or other disagreements between consumers and suppliers;

(f) provide redress against violations of this Act;

(g) where appropriate, dismiss complaints; and

(h) carry out such other functions incidental to the proper discharge of the functions under paragraphs (a) to (g).

(2) The Board may for the purpose of exercising or discharging any functions under this Act, do anything and enter into any transaction which in the opinion of the Board, is necessary to ensure the proper exercise or discharge of its functions under this Act.

(3) The Board, in addition to its functions, may provide guidelines published in the Gazette on the concept of sustainable consumption with respect to the provision of any goods or service.

9. Powers of the Board

(1) For the purposes of the discharge of the functions under section 8, the Board has power to request any information, document or thing, with respect to a complaint from

(a) the Director;

(b) the Department;

(d) the supplier against whom the complaint is made; or

(e) any other person who, in the opinion of the Board, may be able to assist.

(2) The Board may

(a) issue a summons and enforce the attendance of any party or witness and examine the party or witness on oath;

(b) order the production of any document or other material object to be produced as evidence;

(d) requisition the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(e) have the authority to do any other thing which may be prescribed.

(3) Where a summons is issued under subsection (2)(a), the summons shall be

(a) in the form set out in Schedule 3;

(b) served by

(i) a member of the Royal Saint Christopher and Nevis Police Force,

(ii) a bailiff, or

(iii) any other person authorized by the Department.

10. Acting members

(1) Where the Chairperson, Deputy Chairperson or any other member of the Board is absent or unable to act, the Minister may appoint any person to act temporarily in the place of the Chairperson, Deputy Chairperson or such member.

(2) Where the Minister appoints a person temporarily under subsection (1), the appointment must comply with the requirements in section 6 as to the constitution of the Board.

11. Resignations

(1) Any member of the Board, other than the Chairperson or Deputy Chairperson, may at any time resign his or her office by notice in writing addressed to the Minister and transmitted through the Chairperson or Deputy Chairperson, and from the date of the receipt by the Minister of such notice, such member ceases to be a member of the Board.

(2) The Chairperson or the Deputy Chairperson may at any time resign his or her office by notice in writing addressed to the Minister and such resignation takes effect as from the date of the receipt by the Minister of such notice.

12. Revocation of appointment

The Minister may at any time revoke the appointment of any member of the Board if that member

(a) becomes disqualified in accordance with section 7;

(b) neglects his or her duty as a member or engages in misconduct or malfeasance; or

excused by the member chairing the meeting.

13. Publication of names of members

The names of all members of the Board as first constituted and every change in the membership of the Board must be published in the Gazette.

14. Procedure for meetings

(1) The Board shall meet at least once every month or at such times as may be necessary or expedient for the transaction of business, and the meetings are to be held at such places and times and on such days as the Board determines.

(2) The Chairperson and any other member are deemed to be present at a meeting of the Board if that Chairperson or member participates by telephone, video link or other electronic means, and all members participating in the meeting are able to hear and speak to each other.

(3) The Chairperson, or in his or her absence the Deputy Chairperson, shall preside at meetings of the Board, and in the absence of both the Chairperson and the Deputy Chairperson from any meeting, the members present at that meeting shall elect one of their number to preside at that meeting.

(4) The quorum of the Board is a majority of the members of the Board, including the member presiding at the meeting.

(5) The decision of the Board is by a majority of votes and, in any case in which the voting is equal, the Chairperson or other member presiding at the meeting has a casting vote in addition to an original vote.

(6) Minutes in proper form of each meeting shall be kept by the Secretary and shall be confirmed by the Chairperson or other member presiding as soon as practicable at the next meeting.

(7) The Board may co-opt persons with expert knowledge or experience required by the Board in the discharge of its functions.

(8) The acts of the Board are authenticated by the signature of the Chairperson of the Board.

(9) The validity of any proceedings of the Board is not affected by any vacancy amongst the members or by any defect in the appointment of a member.

(10) Subject to this section, the Board may regulate its own procedure.

15. Seal

(1) The Board must have an official seal which is kept in the custody of the Secretary.

(2) The affixing of the official seal of the Board must be witnessed and signed by the Chairperson, or in his or her absence, the Deputy Chairperson.

(3) All documents which are executed by the Board and all decisions of the Board shall be signed by the Chairperson or in his or her absence the Deputy Chairperson or any other member authorized in writing by the Chairperson to act on behalf of the Chairperson.

16. Protection of members

A member of the Board is not personally liable for any act or default of the Board done or omitted to be done in good faith in the course of the operations of the Board.

17. Disclosure of interest

A member of the Board who is in any way interested in a company, undertaking or matter which is under consideration by the Board shall disclose to the Board the fact and nature of his or her interest and shall not take part in and shall be absent from any deliberation or any decision of the Board relating to such matter and such a disclosure must immediately be recorded in the records of the Board.

18. Remuneration of members

There shall be paid to the members of the Board, such remuneration, if any, whether by way of honorarium, salary or fees, and such allowances as Cabinet determines.

19. Expenses of the Board

The expenses of the Board, including the remuneration of the members and any fees related to a complaint are to be paid out of the Consolidated Fund.

20. Independence

The Board shall not be subject to the direction or control of any person in the exercise of its powers.

PART III

RECEIPT AND INVESTIGATION OF COMPLAINTS

21. Complaints

(1) Any person who has reasonable grounds to believe that a supplier is in breach of the provisions of this Act may, make a complaint, to the Board through the Department.

(2) A complaint under subsection (1) shall be made in the form set out in Schedule 2.

(3) A complaint to the Board under this section may be made orally but shall be reduced to writing by the person receiving the complaint and the complainant shall confirm with his or her signature or other identifying mark on the prescribed form.

(4) Notwithstanding the procedure set out for making a complaint under this Act, a person who wishes to complain about the actions of a supplier may file a criminal complaint or a civil claim in any court having jurisdiction to hear such matter.

22. Protection of persons making complaint

Where a person makes a complaint to the Board under section 21

(a) in good faith;

(b) reasonably believing that the complaint made and any allegations contained in it, are substantially true, and in the circumstances it is reasonable for him or her to make the complaint,

he or she is not liable to any damage caused to the supplier.

23. Receipt of complaint by the Department

(1) Upon receipt of a complaint, the Director shall

(a) give a certified copy of the complaint to the person making the complaint;

(b) submit a copy of the complaint to the Board.

(2) In this section “certified copy” means a copy of the complaint signed by the person receiving the same and stamped “certified” with the official stamp of the Board.

24. Investigation by the Department

Where upon examination of a complaint, the Director is of the view that an investigation is necessary to ascertain whether any supplier has committed a breach of any provision of this Act, the Department shall investigate the complaint.

25. Power to investigate not precluded

(1) The Department shall not be precluded from conducting an investigation in respect of any matter by reason only that it is open to the complainant to apply to the court for redress under any other law.

(2) The Department is not precluded from investigating a complaint where an action is commenced in any court in connection with such investigation unless the court otherwise directs.

26. Power to obtain information, documents and evidence

(1) Where the Director or an authorized officer conducts an investigation and the supplier, consumer or any other person is capable of furnishing information or producing documents relating to the investigation, the Director or the authorized officer may, by notice in writing served on the supplier, consumer or person require the supplier, consumer or person to

(a) furnish the Director or an authorized officer in writing signed by the supplier, the consumer or other person, in the manner, and within such reasonable time, as is specified in the notice, such information;

(b) produce to the Director or an authorized officer in accordance with such reasonable requirements, as are specified in the notice, such documents; or

(c) cause the supplier, the consumer or other person, to appear before the Director or an authorized officer at such reasonable time and place as is specified in the notice to give such evidence, either orally or in writing, and to produce such documents.

(2) Subject to subsection (3), where the Director or an authorized officer has to conduct an investigation, the Director or the authorized officer may, for the purposes of the investigation, enter any premises and may

(a) inspect the premises;

(b) take samples of goods;

(d) inspect equipment used in the manufacturing, processing or storage of goods.

(3) The Director or an authorized officer shall exercise the powers under subsection (2) where a warrant is issued under subsection (5).

(4) Where an application for a warrant is made, the Magistrate may issue a warrant authorizing the Director or authorized officer named in the warrant, to enter the premises specified in the warrant and to exercise the powers of the Director or the authorized officer under subsection (2) in relation to those premises.

(5) A Magistrate shall not issue a warrant under subsection (4) unless

(a) an affidavit has been furnished to the Magistrate setting out the grounds on which the issue of the warrant is being sought;

(b) the applicant or some other person has given to the Magistrate such further information, if any, on oath as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

grounds for issuing the warrant.

(6) A warrant issued under subsection (5) shall

(a) specify the purpose for which the warrant is issued;

(b) specify the hours within which entry is authorized to be made;

(d) specify a date, not being less than seven days after the day on which the warrant is issued, after which the warrant ceases to have effect.

(7) The Director or authorized officer shall, before entering the premises under a warrant issued under subsection (5)

(a) announce that he or she is authorized to enter the premises;

(b) give any person at the premises an opportunity to allow entry to the premises; and

(c) give a copy of the warrant to the supplier or a competent officer or in the absence of such a person on the premises to any person on the premises who appears to be employed by the supplier.

(8) A person who interferes with the Director or an authorized officer in the execution of a warrant under this section commits an offence and upon summary conviction is liable to a fine not exceeding three thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding three months or to both.

(9) Any information furnished by a person, any document produced by a person, and any information or document obtained by a person under this section, may only be used by the Director or an authorized officer or a person assisting the Director or authorized officer in proceedings against the supplier for contravention of a provision of this Act.

27. Report to Board

(1) Upon conclusion of an investigation, the Department shall prepare a full report of the investigation together with its findings and recommendations and submit a copy to the Board.

(2) The Director shall review all reports prepared under subsection (1).

28. Rules by the Director

The Director may make Rules governing the procedures to be followed by officers of the Department in receiving, recording, or investigating complaints, and may require that all complaints be notified to such person as the Director may specify.

29. Receipt of report by the Board

Upon receipt of a report, the Board may

(a) reject the complaint under section 30;

(b) informally dispose of the complaint under section 31; or

30. Rejection of complaint by the Board

(1) The Board may on receipt of a complaint and after examining the complaint, reject the complaint if the Board is of the opinion that –

(a) the subject matter of the complaint is trivial;

(b) the complaint is frivolous or vexatious or not made in good faith;

(c) the complainant has delayed for more than six months from the day the grounds for complaint arose or a period expressed in relation to the goods or services whichever is greater;

(d) having regard to all the circumstances of the case, no investigation or further investigation is necessary;

(e) the complaint does not pertain to a matter the Board is empowered to deal with under this Act.

(2) In considering a complaint, the complainant shall be given a reasonable opportunity to be heard.

(3) Where the Board decides to reject a complaint, the Secretary shall, in writing, inform the complainant of that decision and give reasons for so deciding.

(4) Where the Board finds that a complaint is frivolous or vexatious or not made in good faith the complainant bears any costs related to the complaint.

(5) A person may appeal against a decision of the Board to the Appeals Tribunal.

31. Informal disposal

(1) The Board shall consider whether a complaint can be disposed of informally and, with the consent of the complainant and the supplier, may attempt to dispose of the complaint.

(2) An answer or statement made, in the course of attempting to dispose of a complaint informally by the complainant or the supplier must not be used or received in any criminal proceedings.

(3) Where a complaint is disposed of informally, the supplier must be informed of the disposition in writing.

32. Hearing instituted by the Board

(1) The Board shall institute a hearing by sending a notice of the hearing to the complainant and the supplier who is the subject-matter of the complaint.

(2) The notice of hearing must

(a) specify the complaint and purpose of the hearing;

(b) specify the place and time of the hearing; and

(3) The complainant and the supplier concerned shall attend the hearing.

33. Non-attendance of parties

(1) Where the complainant does not attend the hearing, having had due notice of the time and place of hearing, the Board may dismiss the complaint, unless having received a reasonable excuse for the non-appearance of the complainant the Board thinks it fit to adjourn the matter.

(2) Where a person

(a) refuses or neglects without reasonable cause, to attend a hearing in compliance with the requirements of a notice issued under section 32; or

(b) departs from a hearing without the authority of the person holding the hearing,

the Board may proceed with the hearing and render a decision in his or her absence in accordance with the provisions of this Act.

34. Recommendation of complaint for hearing

Where a complaint is recommended to the Board under section 27, the Director and in his or her absence the Deputy Director shall

(a) furnish the Board with

(i) the complaint and any supporting materials or documents tendered by the complainant;

(ii) the response of the supplier and any supporting materials and documents tendered by the supplier, where available; and

(b) in writing, notify the complainant and the supplier

(i) that the complaint has been recommended for hearing by the Board; and

(ii) of the date, time and place at which they are to appear before the Board.

35. Rights and obligations of person summoned

(1) A person summoned to attend and give evidence or to produce a document before the Board shall be entitled

(a) in respect of his or her attendance, the giving of evidence, the disclosure of any communication or the production of any document, to the same rights and privileges as a person summoned before a court of law; and

(b) to be paid his or her expenses, including travelling expenses, at the rates prescribed for witnesses in civil proceedings who are entitled to have their expenses paid from the public fund.

(2) The Board may, if it thinks fit, disallow the whole or any part of any expenses referred to in subsection (1)(b).

(3) A person commits an offence, if he or she –

(a) without sufficient cause, fails or refuses to obey a summons issued by the Board;

(b) being a witness before the Board, without sufficient cause

(i) leaves the hearing without the permission of the Board; or

(ii) refuses to answer any question put to him or her by or with the permission of the Board; or

(4) A person who contravenes subsection (3) commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

36. Documents to be received as evidence

In all legal proceedings, any document submitted to the Board under section 35 shall be received as prima facie evidence of the truth of the statements contained in the document.

Complaints and Disputes Regarding Goods

37. General procedure for resolving complaints and disputes in relation to goods

Where

(a) on a recommendation made under section 34, the Board admits, for hearing, a complaint in relation to goods;

(b) the Board is satisfied that the parties have been notified in accordance with section 34 (b); and

(i) denies or disputes the allegations contained in the complaint, or

(ii) omits or fails to take any action to represent his or her case within the time specified under section 26, the Board shall, subject to subsection (2), resolve the complaint.

(2) In resolving a complaint the Board shall make a decision on the basis of evidence brought to its attention, which may include any reports issued by an appropriate laboratory.

(3) Where a complaint in relation to goods is recommended to be heard and determined by the Board but the procedure set out in sections 37 to 40 cannot be followed, the procedure set out in relation to complaints and disputes regarding services shall be followed.

38. Alleged defects requiring proper analysis and laboratory report

Where the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the Board shall, in the prescribed manner

(a) obtain a sample of the goods from the complainant; (b) seal the sample and authenticate it; and

(c) subject to subsection (2), refer the sealed sample to an appropriate laboratory along with a direction to the laboratory to

(i) make an analysis or test of the goods, whichever may be necessary;

(ii) determine whether the goods suffer from any defect alleged in the complaint, from any other defect or pose any health risk; and

(iii) report its findings to the Board within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the Board.

(2) Before any sample of the goods is referred to an appropriate laboratory, the Board shall require the complainant to deposit such fees as may be prescribed, for payment to the laboratory for carrying out the necessary analysis or test in relation to the goods in question.

(3) The Board shall remit the amount deposited to its credit under subsection (2) to the laboratory to enable the laboratory to carry out the necessary analysis or tests.

(4) Upon completion of the requisite analysis or tests, the laboratory shall submit its report to the Board in the prescribed form.

39. Receipt and distribution of laboratory report

(1) Upon receipt of the report from the laboratory, the Board shall forward to the complainant and the supplier, a copy of the report along with such remarks as the Board considers appropriate.

(2) If any party disputes the accuracy of the findings of the laboratory or the accuracy of the methods of analysis or test adopted by the laboratory, the Board shall require the supplier or the complainant to submit in writing the grounds and nature of his or her dispute with regard to the report made by the laboratory.

(3) Upon receipt of a written submission under subsection (2), the Board shall give reasonable opportunity to the complainant and the supplier to be heard as to the accuracy or otherwise of the report made by the appropriate laboratory.

40. Procedure subsequent to receipt of laboratory reports and responses

(1) Upon receipt of the responses of the parties, the Board shall, in its deliberations, examine the laboratory report, the parties’ responses and all other evidence to which sections 37 to 40 apply.

(2) The Board, after considering all the evidence shall, by order, perform its functions under section 42.

Complaints and Disputes Regarding Services

41. General procedure for resolving complaints and disputes in relation to services

(1) Where

(a) on a recommendation made under section 27, the Board may admit, for hearing, a complaint in relation to services;

(b) the Board is satisfied that the parties have been notified in accordance with section 34 (b); and

(i) denies or disputes the allegations contained in the complaint; or

(ii) omits or fails to take any action to represent his or her case within the time specified under section 26,

the Board shall proceed to resolve the complaint in accordance with subsection (2) notwithstanding that the matter complained of constitutes a criminal offence under this Act.

(2) The Board shall resolve each complaint

(a) on the basis of evidence brought to its attention by the complainant and the supplier, where the supplier denies or disputes the allegations contained in the complaint; or

(b) ex parte, on the basis of evidence brought to its attention by the complainant where the supplier omits or fails to take any action to represent his or her case within the time and manner specified by the Board.

(3) Where the complainant fails to appear on the date of hearing before the Board, the Board may dismiss the complaint for default, adjourn the matter or decide the matter on its merits.

(4) No proceedings complying with the procedure laid down in this Part shall be called in question on the ground that the principles of natural justice have not been complied with.

(5) The Board shall hear and determine every recommended complaint as expeditiously as possible and decide the complaint no later than three months from the date of receipt of notice by the supplier where the complaint does not require analysis or testing of commodities and within five months, if the complaint requires analysis or testing of commodities.

(6) No adjournment shall be ordinarily granted by the Board unless sufficient cause is shown and the reasons for a grant of adjournment have been recorded in writing by the Board.

(7) The Board may make such orders as to the costs occasioned by the adjournment as may be prescribed.

(8) Where a complaint is disposed of, the Board shall at the time of disposal of the complaint record, in writing, the reasons for the disposal.

(9) Where during the pendency of any proceeding before the Board, an interim order appears to the Board to be necessary, just and proper, given the facts and circumstances of the case, the Board may pass the interim order.

Findings, Completion and Decisions of the Board

42. Decisions of the Board

(1) If the Board is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, the Board shall issue an Order within fourteen days after the hearing, directing the supplier to do one or more of the following —

(a) to remove the defect from the goods in question;

(b) to replace the goods with new goods of similar description which shall be free from any defect;

(d) to remove the deficiencies in the services in question;

(e) to desist and discontinue the unfair trade practice or the restrictive trade practice;

(f) to refrain from offering the hazardous goods for sale;

(g) to withdraw the hazardous goods from being offered for sale;

(h) to cease the manufacture of hazardous goods and to desist from offering services which are hazardous in nature;

(i) to pay such fixed penalties as may be determined by the Board as set out in Schedule 4;

(j) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the supplier responsible for issuing such misleading advertisement; or

(k) to provide for prescribed costs to parties in addition to the fees, if any paid to the laboratory for analysis or testing of goods.

(2) Where the Board finds a complaint to be false, frivolous or vexatious it shall, issue an Order

(a) dismissing the complaint;

(b) for the complainant to pay to the supplier such prescribed costs, as may be specified in the Order.

(3) Every Order made by the Board under this Part shall be signed by the Chairperson who conducted the proceeding provided that where any of the members differ on any point, they shall state the point on which they differ and the opinion of the majority shall be the Order of the Board.

43. Fixed penalties and Orders of the Board

(1) The offences listed in Schedule 4 are designated offences for which criminal proceedings may be commenced.

(2) A fixed penalty shall be issued by the Board in respect of designated offences, as specified in Schedule 4.

(3) Where a person fails to pay a fixed penalty issued by the Board or comply with an Order of the Board within fourteen days of notice of the Order, the Secretary shall file the Order in the court for enforcement.

(4) Upon its filing in the court a fixed penalty, an Order for costs or other Order of the Board shall be levied out of the property of the party against whom it is made and shall be registered as a judgement.

(5) Notwithstanding subsection (2), an authorized Consumer Affairs Officer, may issue a fixed penalty notice to any person who contravenes the provisions of Part V, Part VI, Part VII, Part VIII or Part IX in the manner and form specified in Schedule 5.

(6) A fixed penalty notice issued by an authorized Consumer Affairs Officer in accordance with the provisions of this section shall be lawful notice that the person is charged with the commission of an offence and that a complaint will be made against that person in respect thereof requiring him or her to either pay the fixed penalty within fourteen business days.

(7) The authorized Consumer Affairs Officer shall send to the Magistrate for the magisterial district in which the offence is alleged to have been committed, a duplicate of the notice, which duplicate shall be deemed to be a complaint laid before the Magistrate and a summons issued by the Magistrate for the purposes of the Magistrate’s Code of Procedure Act.

(8) A fixed penalty notice issued by an authorized Consumer Affairs Officer shall be signed by the authorized Consumer Affairs Officer and shall specify

(a) the date, time and place of the giving of the notice;

(b) the provision of the section creating the offence alleged and such particulars of the offence as are required for proceedings under the Magistrate’s Code of Procedure Act, Cap. 3.17;

(d) the amount of the fixed penalty;

(e) the Clerk of the Magistrate to whom, and the address at or to which the fixed penalty may be paid;

(f) the address of the Magistrate’s Court at which the person is required to appear in the event of his or her failure to pay the fixed penalty within the specified time, and the date and time of such appearance.

(9) Where a fixed penalty notice issued by an authorized Consumer Affairs Officer has been given under this section, the person may pay the fixed penalty in accordance with the notice.

(10) The time within which the fixed penalty notice issued by an authorized Consumer Affairs Officer shall be payable shall be fourteen business days from the date of the notice, and where payment reaches the Clerk of the Magistrate after that time, it shall not be receivable and shall be returned to the sender.

(11) Where the fixed penalty notice issued by an authorized Consumer Affairs Officer is duly paid in accordance with the notice, the proceedings instituted by the notice shall be discontinued.

(12) Payment of the fixed penalty notice issued by an authorized Consumer Affairs Officer shall be made to the Clerk of the Magistrate’s Court District “A” Basseterre or the Clerk of the Magistrate’s Court, District “C”, Charlestown and shall be dealt with in the same manner as payment of a fine imposed for an offence under the Magistrate’s Code of Procedure Act.

(13) The fixed penalty notice issued by an authorized Consumer Affairs Officer shall be presented for payment of the fixed penalty.

(14) In any proceedings, a certificate that payment of the fixed penalty was or was not made to the Clerk of the Magistrate by a date specified in the certificate shall, if the certificate is signed by the Clerk, be sufficient evidence of the facts stated, unless the contrary is proved.

(15) Where the fixed penalty is not paid within the time specified in the notice, proceedings in respect of that offence shall be in accordance with the provisions of the Magistrate’s Code of Procedure Act.

44. Completion of hearing

On completion of a hearing, the Secretary shall prepare and send to the complainant and to the supplier concerned, a notice of the decision of the Board setting out the Board’s findings and recommendations with respect to the complaint.

45. Registration of Order of the Board

(1) The Director shall cause an Order made by the Board to be filed in the office of the court upon the expiry fourteen days after the Order is brought to the attention of the party against whom the Order is made.

(2) An Order filed in respect of an offence relating to the breach of any of the provisions of this Act shall be accompanied by a statement of the Board as to the findings of the Board.

46. Options after issue of Order

Within fourteen days of the issue of the order, a person may

(a) pay the total amount set out in the Order in accordance with section 47; or

(b) request an appeal in accordance with section 58.

47. Payment of Order

(1) A person who is served with an Order shall deliver the total amount set out in the Order to the Accountant General, within the time specified in the Order and shall be entitled to have endorsed on the Order the details of payment.

(2) Payment of the total amount within the time specified shall constitute the satisfactory disposition of the matter and shall operate in like manner as an absolute discharge.

PART IV

APPEALS TRIBUNAL

Composition, Functions, Powers and Proceedings

48. Establishment of Appeals Tribunal

There is established a Tribunal to be known as the Consumer Protection Appeals Tribunal.

49. Constitution of Appeals Tribunal

(1) The Appeals Tribunal comprise of three persons, appointed by Cabinet to include members possessing knowledge or experience in one or more of the fields of law, industry, public administration and consumer protection.

(2) The Chairperson of the Appeals Tribunal shall be a legal practitioner of not less than ten years standing.

50. Tenure

A member of the Appeals Tribunal holds office for a period not exceeding three years but is eligible for reappointment.

51. Resignation

(1) Any member of the Appeals Tribunal, may at any time resign from office by instrument in writing addressed to Cabinet and transmitted through the Chairperson, and such resignation takes effect as from the date of receipt of that instrument by Cabinet.

(2) The Chairperson may at any time resign from his or her office, by instrument in writing addressed to Cabinet, and such resignation takes effect as from the date of receipt of that instrument by Cabinet.

52. Revocation of appointment

(1) Cabinet may at any time revoke the appointment of any member of the Appeals Tribunal, including the Chairperson, if the member or Chairperson

(a) neglects his or her duty as a member or engages in misconduct or malfeasance; or

(b) is absent from three consecutive meetings without excuse from the Chairperson.

(2) Where Cabinet revokes the appointment of a member of the Appeals Tribunal or the Chairperson, Cabinet shall state the reasons of the revocation.

53. Temporary members

(1) Where the Chairperson or any member of the Appeals Tribunal

(a) is unable to perform the functions of the office of Chairperson or member of the Appeals Tribunal;

(b) is absent;

(d) resigns or the appointment is revoked,

Cabinet may appoint another person to act temporarily in place of the Chairperson or that member.

(2) A person appointed pursuant to subsection (1) shall be appointed in a manner that complies with the requirements in section

49 for the constitution of the Appeals Tribunal and holds office

(a) in the case of the absence or inability of the Chairperson or member to perform his or her functions, only for the portion of the term of the absence or inability;

(b) in the case of the death, resignation or revocation of appointment of the Chairperson or member, the unexpired portion of the term of the former member.

54. Publication in the Gazette

The appointment of any member of the Appeals Tribunal and the termination of office of any person as a member whether by death, resignation, removal, passing of time or otherwise, shall be published in the Gazette.

55. Secretary of Appeals Tribunal

(1) The Appeals Tribunal shall appoint a recording secretary of the Appeals Tribunal who has no voting rights.

(2) The Secretary shall keep a written record of all proceedings of the Appeals Tribunal, which shall be confirmed by the Chairperson.

56. Remuneration and allowances

There shall be paid to members of the Appeals Tribunal such remuneration and allowances, if any, whether by honorarium, salary or fees, as Cabinet determines.

57. Hearings, deliberations and decisions

(1) A person who is dissatisfied by a decision of the Board may appeal to the Appeals Tribunal within fourteen days of receipt of the decision of the Board.

(2) The Appeals Tribunal shall convene at such time, at such place and on such days as may be necessary or expedient for the discharge of its functions.

(3) The quorum for proceedings of the Appeals Tribunal shall comprise a majority of the members.

(4) Where an appeal is lodged, the Appeals Tribunal shall convene a hearing within a period of thirty days from the date of receipt of the appeal.

(5) At least fourteen days before the date fixed for the hearing of an appeal, the Secretary to the Appeals Tribunal shall by notice in writing advise the appellant, the respondent and the Appeals Tribunal of the date, the time and the place at which the appeal has been set down for hearing.

(6) A notice under subsection (5) shall be given to the Appeals Tribunal and to the appellant and the respondent personally to his or her given address for service or by sending the notice by registered mail.

(7) At least seven days before the hearing of the Appeals Tribunal, the Secretary shall, whenever practicable, cause the notice referred to under subsection (5) to be published in the Gazette.

(8) At every hearing of the Appeals Tribunal the appellant and respondent shall be entitled to appear in person or by a representative.

(9) The hearing of an appeal by the Appeals Tribunal shall be in private.

(10) The decision of the Appeals Tribunal shall be by a majority of votes of those members present and voting and, in addition to an original vote, the Chairperson has a second or casting vote in any case in which the voting is equal.

(11) The decision of the Appeals Tribunal shall be conveyed to the Board and the appellant in writing.

(12) An appeal to the Appeals Tribunal may be made from a decision of the Board on a point of law, but not on any matter of fact or on the merits of any decision made by the Board.

(13) A member of the Appeals Tribunal shall, as soon as is practicable inform the Chairperson of any matter in which he or she has, either directly or indirectly, personally or by his or her relative, partner, business associate or company, any pecuniary or business interest and that member shall not take part, directly or indirectly, in any hearing, deliberation or decision by the Appeals Tribunal on that matter.

(14) The decision of the Appeals Tribunal shall be authenticated by the signature of the Chairperson and the Secretary.

58. Functions and powers of Appeals Tribunal

For the purposes of this Part, the Appeals Tribunal

(a) shall review the proceedings before the Board and consider any submissions made by the parties;

(b) may decide on costs and such other matters as may be prescribed.

59. Proceedings of Appeals Tribunal

Subject to subsection (2) and section 49, every proceeding of the Appeals Tribunal shall be conducted by the Chairperson of the Appeals Tribunal and two other members sitting together.

(2) Where a member of the Appeals Tribunal, other than the Chairperson, is unable to conduct proceedings to completion, the Chairperson and the other member shall continue the proceedings from the stage at which it was last heard by the previous member and conclude the hearing.

60. Validity of proceedings

The validity of any proceedings of the Appeals Tribunal is not affected by any vacancy in its membership or by any defect in the appointment of any of its members.

PART V

TERMS OF CONSUMER AGREEMENT

61. Written terms to be plain and intelligible

(1) A supplier shall ensure that a written term in a consumer agreement is expressed in plain and intelligible language.

(2) Where there is doubt about the meaning of a written term, the interpretation that is most favourable to the consumer prevails.

(3) In so far as a term is plain and intelligible, the assessment of its fairness must not relate to

(a) the definition of the main subject matter of the consumer agreement; or

(b) in the case of price, the adequacy of the price or remuneration as against the goods or service supplied in exchange.

62. Unfair terms

(1) A term in a consumer agreement is unfair if it is to the detriment of the consumer and it causes a significant imbalance in the rights of the supplier and the consumer.

(2) In determining whether a term is unfair the Board or Appeals Tribunal shall have regard to all the circumstances of the case and in particular to the following

(a) the bargaining strength of the parties to the consumer agreement relative to each other, taking into account

the availability of equivalent goods or service, and

suitable alternative sources of supply;

(b) whether the consumer received an inducement to agree to the term, or, in agreeing to the term, had an opportunity of acquiring the goods or service or equivalent goods or service, from any source of supply under a contract that did not include that term;

(c) whether the consumer knew or ought reasonably to have known of the existence and extent of the term, having regard to any custom of trade and any previous dealings between the parties;

(d) in the case of supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer;

(e) the nature of the goods or service for which the consumer agreement was concluded;

(f) the interest of the supplier;

(g) the other terms of the consumer agreement or of another consumer agreement on which it is dependent;

(h) the interest of the particular class of consumers who are likely to adhere to the consumer agreement; and

(i) the circumstances surrounding the conclusion of the consumer agreement at the time of its conclusion.

(3) An unfair term in a consumer agreement is unenforceable against the consumer.

(4) Where a consumer asserts that a term in a consumer agreement is unfair, it is for the supplier to prove that the term is not unfair.

(5) Where the Board or Appeals Tribunal, after having considered all the circumstances contemplated under subsection (2), is of the opinion that a term is unfair, it may

(a) rescind or amend the consumer agreement or a term of the consumer agreement; or

(b) make any other order as may be necessary to prevent the effect of the consumer agreement being unfair or unreasonable to any of the parties, notwithstanding the principle that effect must be given to the contractual terms agreed upon by the parties.

63. Excluding, restricting or modifying liability

(1) A term of a consumer agreement, including a term that is incorporated in that agreement by a term of the agreement, is void if it purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying

(a) the application of any provision of this Act to the consumer agreement; or

(b) the exercise of a right conferred by Part VI.

(2) A term of a consumer agreement is not to be taken as purporting to exclude, restrict or modify the application of a provision of this Act unless the term does so expressly or is inconsistent with that provision.

(3) A supplier shall not in trade or commerce and by reference to

(a) any term of a consumer agreement;

(b) a notice given to persons generally; or

exclude or restrict his or her liability for death or personal injury resulting from negligence.

(4) In the case of other loss or damage, a supplier shall not in trade or commerce exclude or restrict the supplier’s liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness as provided under sections 65 and 167.

(5) Where a term of a consumer agreement or a notice purports to exclude or restrict the liability of a supplier for negligence, the fact that a person agrees with it or is aware of it is not in itself to be taken as indicating the person’s voluntary acceptance of any risk.

64. Indemnity from liability

A consumer shall not by reference to any term of a consumer agreement be made to indemnify another person, whether a party to the agreement or not, in respect of liability that may be incurred by the other person for negligence or breach of contract, except in so far as the term of the agreement satisfies the requirement of reasonableness under section 167.

65. Satisfying reasonableness where agreement terminated

(1) Where, for the purpose of reliance upon it, a term of a consumer agreement has to satisfy the requirement of reasonableness, it may be found to do so and be given effect notwithstanding that the agreement has been terminated by breach or by a party electing to treat it as repudiated.

(2) Where on a breach, a consumer agreement is nevertheless affirmed by a party entitled to treat it as repudiated, such affirmation does not of itself exclude the requirement of reasonableness in relation to any term of a consumer agreement.

66. Liability for breach

Liability for breach of the obligations arising from any provision in an enactment relating to any implied condition or implied warranty in relation to goods is not excluded or restricted by reference to any term in a consumer agreement.

PART VI

CONSUMER RIGHTS

67. Right reserved

Nothing in this Act is interpreted so as to limit any right or remedy that a consumer has in law.

68. Protection of consumer right

(1) Where a consumer has exercised, asserted or sought to uphold any right set out in this Act or in a consumer agreement with the supplier, a supplier who, in response

(a) discriminates directly or indirectly against that consumer, compared to the supplier’s treatment of any other consumer who has not exercised, asserted or sought to uphold such a right;

(b) penalizes the consumer;

(c) alters, or proposes to alter, the terms or conditions of a transaction or agreement with the consumer, to the detriment of the consumer; or

(d) takes any action to accelerate, enforce, suspend or terminate an agreement with the consumer, commits an offence.

(2) Where a consumer agreement or any provision of such an agreement is, in terms of this Act, declared to be unlawful, or is severed from the agreement, the supplier who is a party to that agreement shall not, in response to that decision

(a) alter any term or condition of any other transaction or agreement with another party to the unlawful or severed agreement, except to the extent necessary to correct a similarly unlawful provision; or

(b) take any action to accelerate, enforce, suspend or terminate another consumer agreement with another party to the unlawful or severed agreement.

(3) A person who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

69. Substantive and procedural rights

(1) The substantive and procedural rights given under this Act apply notwithstanding any agreement or waiver to the contrary.

(2) Without limiting the generality of subsection (1), any term or acknowledgement in a consumer agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it purports to prevent a consumer from exercising a right given under this Act.

(3) Notwithstanding subsections (1) and (2), where a dispute over which a consumer may commence an action in the court arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law.

(4) A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in court.

70. Right to select supplier, goods or service

(1) A supplier shall not require, as a condition of offering to supply, or supplying, any goods or service, or as a condition of entering into a consumer agreement, that the consumer

(a) purchase any other goods or service from that supplier;

(b) enter into an additional agreement or transaction with the same or another supplier; or

(2) Without limiting the generality of subsection (1), a supplier requires a consumer to purchase additional goods or service if the supplier

(a) supplies the primary goods and any additional goods in a common package, and offers the goods for supply at a single price;

(b) attaches to or inserts within, or in the packaging of, any primary goods a promotional coupon, credit slip, voucher or similar device to be used as full consideration for the purchase of any additional goods or service; or

(c) installs within or encodes on the primary goods, or any component of the goods, any additional goods but does not alternatively offer the goods for supply separately and at individual prices.

71. Right to choose and examine goods

(1) Where any goods are displayed in or sold from open stock, the consumer has the right to select or reject any particular goods from that stock.

(2) Where the consumer has agreed to purchase goods on the basis of a description or sample of the goods it is an implied condition of the agreement that the goods

(a) delivered to the consumer corresponds with the description or sample; and

(b) are free from any defect that would not be apparent from the description or on reasonable examination of the sample.

(3) Where the consumer has agreed to purchase or lease goods on the basis of a sample, as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description.

(4) Where the supplier delivers goods to a consumer under a consumer agreement, the supplier shall allow the consumer a reasonable opportunity to examine the goods for the purpose of ascertaining whether the goods are in conformity with the consumer agreement.

(5) Where goods are delivered to the consumer that the consumer has not previously examined, the consumer is deemed not to have accepted the goods until the consumer has had a reasonable opportunity of examining it for the purpose of ascertaining whether it is in conformity with the consumer agreement.

72. Right to accept goods or service

(1) A consumer is deemed to have accepted goods when

(a) the consumer expressly or implicitly communicates to the supplier that the consumer has accepted the goods;

(b) the supplier has undertaken to supply the goods or service of that particular class from time to time to the consumer without further approval or specific request.

(2) Subject to subsection (4), a supplier is not entitled to demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or service, despite the subsequent use, receipt, misuse, loss, damage or theft of the goods or service.

(3) Subject to subsection (4), a supplier is liable to pay to the consumer, such reasonable costs as are incurred in respect of the storage of the unsolicited goods.

(4) Subsections (2) and (3) do not apply to or in relation to a consumer who receives unsolicited goods if

(a) the consumer who receives the goods has unreasonably refused to permit the supplier or the owner of the goods to take possession of the goods;

(b) the supplier or the owner of the goods has, within ten business days of receipt of the goods taken possession of the goods; or

(c) the goods were received in circumstances in which the consumer knew or might reasonably be expected to have known, that the goods were not intended for him or her.

(5) A request for particular goods or service is not inferred solely on the basis of payment, inaction or the passing of time.

(6) Where a consumer is a party to an agreement contemplated in subsection (1)(c) and, during the course of that agreement there is a material change in the goods or service, the goods or service is treated as unsolicited from the time of the material change unless the supplier is able to establish that the consumer consented to the material change.

(7) Where a consumer consents to a material change, whether orally, in writing or by other affirming action, a supplier may rely on the consent but has the onus of proving such consent.

(8) Where a supplier has received payment from or on behalf of a consumer in respect of unsolicited goods or service, the consumer may demand a refund of the payment within three months after having made the payment.

(9) A supplier who receives a demand for a refund under subsection (8) shall refund the payment within the prescribed period of time.

(10) Where a consumer receives any unsolicited goods from a supplier, the consumer

(a) may

(i) subject to paragraph (b)

(ii) retain the goods without payment, or

(iii) return the goods to the supplier at the supplier’s risk and expense; and

(b) notwithstanding subsection (4) is not liable for any

(i) loss or damage to the goods while in transit, or at any time after the goods are received by the consumer, whether or not the goods remain in the consumer’s possession; or

(ii) use or depletion of, or damage to the goods at any time after ten business days after receipt by the consumer, unless during that time, the supplier has notified the consumer that the goods were delivered in error and the supplier arranged to recover the goods, at the supplier’s risk and expense.

(11) In this section “unsolicited goods” means goods that are supplied to a consumer who did not request the goods, but does not include

(a) goods that the consumer knows or ought to know is intended for another person;

(b) a change to periodically supplied goods, if the change is not a material change; or

(c) goods supplied under a written future performance agreement that provides for the periodic supply of the goods to the consumer without further solicitation.

(12) In this section “unsolicited service” means a service that is supplied to a consumer who did not request the service, but does not include

(a) a service that was intended for another person and the consumer knew or ought to have known that the service was so intended;

(b) a change to an ongoing or periodic service that is being supplied, if the change to the service is not a material change; or

(c) a service supplied under a written future performance agreement that provides for the ongoing or periodic supply of a service to the consumer without further solicitation.

74. Right to authorize service

(1) This section applies to any consumer agreement in terms of which a supplier supplies a repair or maintenance service to, or supplies or installs any replacement parts or components in, any property belonging to or in the control of the consumer, if

(a) the supplier has or takes possession of that property for the purpose contemplated in this subsection; or

(b) in any other case, the consumer requests an estimate before any service is supplied.

(2) A supplier to whom this section applies is not entitled to charge a consumer for the supply of any goods or service contemplated in subsection (1) unless

(a) the supplier has given the consumer an estimate that satisfies the prescribed requirements, and the consumer has subsequently authorized the work; or

(b) the consumer has, in writing

(i) declined the offer of an estimate, and authorized the work, or

(ii) pre-authorized any charges up to a specified maximum, and the amount charged does not exceed that maximum.

(3) A supplier is not entitled to charge a consumer for

(a) an estimate required under subsection (2)(a), unless the supplier has disclosed the price for preparing that estimate, and the consumer has approved it; or

(b) any diagnostic work, disassembly or re-assembly required in order to prepare an estimate, or for any damage to or loss of material or parts in the course of preparing an estimate, in addition to any estimate charge imposed under paragraph (a).

(4) The Minister may make Regulations to exempt from this section any transaction or consumer agreement referred to in subsection (1) that is below a prescribed threshold.

75. Right of consumer’s estate to choose whether to uphold agreement

(1) Where a consumer enters into a consumer agreement for the supply of any goods or service, but dies before the supply of the goods or service, in the absence of any written agreement to the contrary

(a) the personal representative of the consumer’s estate may give notice to the supplier

(i) requiring delivery of the goods or supply of the service, in accordance with the agreement, or

(ii) terminating the agreement as from the date of the death of the consumer;

(b) any deposit paid by the consumer remains with the supplier for the benefit of the consumer’s estate.

(2) Where a consumer agreement that has been terminated under subsection (1)(a)(ii) relates to the supply of any special-order goods, the supplier, after receiving notice of the termination

(a) shall not order, procure or make anything not ordered, procured or made, and shall ensure the diligent completion of anything that had been ordered, procured or begun;

(b) is entitled to reimbursement for any costs for the procurement or work, on the terms contemplated in the consumer agreement; and

(c) upon acquisition or completion of the special-order goods, holds the goods in trust for the benefit of the consumer’s estate, subject to further direction by the personal representative of the deceased.

(3) This section does not apply in respect of a consumer agreement for the supply of funeral or burial services.

76. Right to cancel reservation

(1) Subject to subsections (2) and (3), a consumer has the right to cancel any advance booking or reservation for goods or service.

(2) A supplier who makes a commitment or accepts a reservation to supply goods or service on a later date

(a) may require payment of a deposit in advance, not exceeding the prescribed amount or prescribed percentage of the cost of the goods or service that has been reserved; and

(b) may impose a reasonable charge for cancellation for the order or reservation.

(3) For the purposes of this section, a cancellation charge is unreasonable if it exceeds a fair amount in the circumstances, having regard to

(a) the nature of the service that was reserved or booked;

(b) the length of notice of cancellation provided by the consumer; and

(c) the reasonable potential for the supplier, acting diligently, to find an alternative consumer between the time of receiving the notice, and the time of the cancelled reservation.

(4) Where a consumer is unable to carry out a reservation or advance booking by reason of the death of the consumer, the supplier –

(a) may not impose any cancellation fee in respect of the

reservation or booking; and

(b) shall refund to the personal representative of the deceased any deposit paid by the consumer in respect of the reservation or booking.

77. Right to rescind or cancel agreement

(1) This section does not apply with respect to a consumer agreement where goods have been delivered to the consumer, if after having been supplied to, or at the direction of, the consumer

(a) any other law prohibits the return of the goods to the supplier; or

(b) the goods have been

(i) partially or entirely eaten, consumed, depleted or destroyed, unless the consumer was reasonably unable to determine that the goods were unfit for the intended purpose without partially eating, consuming, depleting or destroying the goods, or

(ii) partially or entirely disassembled, physically altered, or affixed, attached, joined or added to, blended or combined with, or embedded within, other goods or property.

(2) The provisions of this section are in addition to and not in substitution for any right to return goods and receive a refund that may otherwise exist in law between a supplier and a consumer.

(3) A consumer may rescind a consumer agreement

(a) within ten business days after delivery of the goods to be supplied under the agreement, if the agreement arises as a result of

(i) direct, distance or electronic marketing by the supplier and contemplates the delivery of the goods to the consumer, or

(ii) any other marketing in circumstances in which the consumer, is unable to choose or examine the goods as contemplated in section 71;

(b) within five business days after entering into the consumer agreement, if the consumer agreement arises as a result of direct, distance or electronic marketing by the supplier but does not contemplate the delivery of goods to the consumer.

(4) Notwithstanding the time limits set out in subsection (3), a consumer may rescind a consumer agreement as contemplated in that subsection within three months after the agreement, if the supplier

(a) was required to be licensed or registered in terms of any other law, and was not so licensed or registered;

(b) contravened any provision of this Act in respect of the transaction.

(5) At any time, by giving one month’s notice to the supplier, a consumer may cancel without penalty, a consumer agreement

(a) for the supply of a continuous service;

(b) to purchase the goods or service on a recurring basis by subscription; or

(6) A supplier

(a) is obliged to return any payment received from a consumer within five business days after receiving notice of the rescission of a consumer agreement; and

(b) is not entitled to collect any payment in terms of a rescinded agreement.

78. Right with respect to delivery of goods or supply of service

(1) Unless otherwise expressly provided or anticipated in a consumer agreement, it is an implied condition of every consumer agreement for the supply of goods that

(a) the supplier is responsible to deliver the goods to the consumer

(i) within a reasonable time,

(ii) subject to subsection (2)(a) at the supplier’s place of business, if the supplier has one, and if not, the supplier’s residence, and

(iii) at the cost and risk of the supplier;

(b) the goods remain at the supplier’s risk until the consumer has accepted delivery.

(2) The consumer has the right to require

(a) delivery of any goods at the

(i) date and time agreed, and

(ii) place of the consumer’s choice, but the supplier may require the consumer to pay the costs of delivery at any location other than a location referred to under subsection (1); or

(b) performance of any service at the time agreed with the supplier.

(3) Where a consumer agreement does not provide a specific time for delivery of any goods or the supply of any service, the supplier shall be required to deliver the goods or performance of the service at a reasonable time.

79. Right to information in plain and understandable language

(1) A document that is required to be delivered to a consumer in terms of this Act, must be provided

(a) in the prescribed form, if any, for that document;

(b) in a minimum font size of 12; or

(2) For the purposes of this Act, a document is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the document is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or service, could be expected to understand the content and significance

of the document without undue effort, having regard to the

(a) context, comprehensiveness and consistency of the document;

(b) organization, form and style of the document;

(d) use of any illustrations, examples, headings, or other aids to reading and understanding.

80. Right to information in English language

A consumer has a right to receive any document and information as required in terms of this Act in the English language.

PART VII

DUTIES OF SUPPLIERS

81. Registration of supplier

(1) A supplier who offers a service to consumers for purchase, shall be appropriately registered as a company, partnership, co-operative, sole proprietor or informal commercial operator.

(2) Where a supplier is registered under any Act the instruments of registration, or any official number or identification mark issued by the relevant authorities shall where applicable, be displayed by the supplier for viewing by the consumer.

(3) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

82. Identification of supplier

(1) A supplier shall not carry on business, advertise, promote, offer to supply or supply any goods or service, or enter into a transaction or consumer agreement with a consumer under any name except

(a) the supplier’s name, as

(i) in the case of a person, recorded in a distinctive badge, tag or other identification device, or

(ii) registered under any other law; or

(b) a name registered to, and for the use of, that supplier under any other law.

(2) A supplier referred to under subsection (1) shall include the following particulars on any trade catalogue, trade circular, business letter, order for goods, sales record, invoice or statement of account issued

(a) the name, title or description under which the business is carried on;

(b) a statement of the place at which, or from which, the business is carried on; and

(c) if the activity is carried on under a name contemplated in subsection (1)(b), the name of the person to whom that name is registered.

(3) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

83. Product labelling and trade descriptions

(1) A supplier of goods shall not display, offer to supply or supply any goods, other than goods that are exempt under subsection (3), unless a trade description of the goods is

(a) applied to the goods, or to any covering, label or reel in or on which the goods are packaged, or attached to the goods;

(b) displayed together with, or in proximity to, the goods in a manner that is likely to lead to the belief that the goods are designated or described by that description; or

(c) contained in any sign, advertisement, invoice, wine list, business letter, business paper, or other commercial communication on the basis of which a consumer may request or order the goods.

(2) A supplier of goods shall

(a) not offer to supply, display, or supply any goods if the supplier knows, reasonably could determine, or has reason to suspect, that

(i) a trade description applied to the goods is likely to mislead the consumer as to any matter implied or expressed in that trade description, or

(ii) a trade description or trade mark applied to the goods has been altered as contemplated in subsection (4); and

(b) with respect to any goods within that person’s control, take reasonable steps to prevent any other person from doing anything prohibited in paragraph (a).

(3) The Minister may make Regulations to

(a) exempt particular goods or a category of goods from the application of subsection (1) if

(i) the goods, or that category of goods, are subject to regulation under any other enactment, and the Minister is satisfied that the regulatory scheme provides for adequate disclosure of information to the consumer to achieve the purposes of this section, or

(ii) the information required under this section is self-evident given the nature of the goods, and the manner and circumstances in which the goods are customarily made available for supply to the public; or

(b) prescribe circumstances of displaying or selling particular goods or a category of goods, which if satisfied, would exempt the goods from the application of this section.

(4) A supplier shall not

(a) knowingly apply to any goods a trade description that is likely to mislead the consumer as to any matter expressed or implied in that trade description;

(b) alter, deface, cover, remove or obscure a trade description or trade mark applied to any goods within his or her control in a manner calculated to mislead consumers.

(5) A supplier shall take reasonable steps to prevent any other person under his or her control from doing anything prohibited in subsection (4).

(6) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars and in default of payment of the fine, or to a term of imprisonment not exceeding six months or to both.

(7) Nothing in this section limits the supplier’s duty to comply with any standard declared by the Bureau.

(8) In this section “trade description” means any description, standard, statement or other direct or indirect indication, except a trade mark, as to

(a) the size, number, quantity, measure or weight of any goods;

(b) the name of the producer of any goods;

(d) the place or country of origin of any goods;

(e) the mode of manufacturing or producing any goods;

(f) any goods being the subject of any patent, privilege or copyright; or

(g) any figure, work or mark, other than a trade mark, that, according to the custom of the trade, is commonly understood to be an indication of any matter contemplated in paragraphs (a) to (f).

84. Disclosure of environmental facts

(1) Without prejudice to the generality of section 83, a person who packages any prescribed goods, or imports any such goods, for supply to consumers, shall display on or in association with that packaging or the goods, a notice in the prescribed manner and form

that discloses

(a) the presence, nature and extent of any

(i) unless otherwise provided by law, genetically modified ingredients or components of the goods, or

(ii) ingredients or components that have been determined to present a chemical or biological hazard to humans and the environment, relative to their concentration in the goods;

(b) the estimated energy requirements per hour of use, if the operation of the goods require the utilization of energy other than muscle power;

(c) the nature and intensity of any potentially harmful energy radiation, if the goods, or any component of the goods, emit any such radiation; and

(d) the need for special handling, or waste disposal, of the goods, any component of them or any material in which the goods were packaged, if such special handling or waste disposal is

(i) required in terms of any other enactment, or

(ii) advisable in the interest of personal, public health or safety and environmental health.

(2) A person who, in connection with the supply of any services to a consumer, supplies to a consumer prescribed goods under subsection

(1) shall

(a) inform the consumer of any relevant information before supplying the goods; and

(b) obtain the express consent of the consumer to install the goods that are the subject of a notice required by subsection (1), before supplying the goods.

(3) Subsection (1) does not apply to goods or service in respect of which a substantially similar label or notice has been applied or provided in terms of any other enactment.

(4) A supplier of goods shall

(a) not offer to supply, display, or supply any goods if the supplier knows, reasonably could determine, or has reason to suspect, that

(i) a notice applied to the goods is likely to mislead the consumer as to any matter implied or expressed in that notice, or

(ii) a notice applied to the goods has been altered as prohibited in subsection

(5); and

(b) with respect to any goods within that person’s control, take reasonable steps to prevent any other person under his or her control from doing anything prohibited in paragraph (a).

(5) A supplier shall not

(a) knowingly apply to any goods a notice that is likely to mislead the consumer as to any matter implied or expressed in that notice; or

(b) alter, deface, cover, remove or obscure a notice applied to any goods in a manner calculated to mislead consumers or with respect to any goods within that supplier’s control.

(6) A supplier shall take reasonable steps to prevent any other person under his or her control from doing anything prohibited in subsection (5).

(7) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

85. Disclosure of used, re-conditioned, re-built or re-made goods

(1) A supplier who offers or agrees to supply, or supplies, any goods that

(a) have been used, re-conditioned, re-built or re-made; and

(b) bear the trade mark of the original manufacturer or supplier,

shall apply a notice to the goods stating clearly that the goods have been used, reconditioned, re-built or re-made.

(2) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

86. Quality of goods or service

(1) A supplier is deemed to warrant that the goods or service supplied under a consumer agreement is of a reasonable acceptable quality.

(2) Goods of any kind are of a “reasonably acceptable quality” within the meaning of this Part if they are as fit for the purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to

(a) any description applied to them;

(b) the price, if relevant;

(d) the durability of the goods;

(e) freedom of the goods from minor defects;

(f) the safety and price of the goods;

(g) any representations made by the seller or supplier of the goods; and

(h) any other relevant circumstance.

(3) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act Cap 18:30 are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.

(4) A term or acknowledgement in a consumer agreement that purports to negate or vary any implied condition or warranty under the Sale of Goods Act Cap 18:30 or any deemed condition or warranty under this Act is void.

(5) A term or acknowledgement referred to in subsection (4) is severable from the agreement.

87. Expiry date, etc. to appear outside packaged food products.

(1) A supplier of goods shall ensure that the bottled or packed or canned food products imported for sale in Saint Christopher and Nevis shall contain outside the container the type or nature of the product, the ingredients, weight or volume, production and expiry date, the duration of use and direction to use, if there is any such specification, in accordance with the Regulations.

(2) A manufacturer of goods shall ensure that the bottled or packed or canned food products produced and offered for sale in the Saint Christopher and Nevis shall contain outside the container the type or nature of the product, the ingredients, weight or volume, production and expiry date, the duration of use and direction to use, if there is any such specification, in accordance with the Regulations.

(3) A supplier who contravenes subsection (1) or a manufacturer who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding $5,000, and in default of payment of the fine, to imprisonment for a term not exceeding 2 years.

88. Prohibition respecting selling expired goods.

(1) A supplier of goods shall not sell, offer for sale or display for sale any goods whose expiry date has passed.

(2) Where a price control officer has reasons to believe or suspects that the expiry date of goods offered or on display for sale to the public has passed, the price control officer shall

(a) instruct the supplier of the goods that the goods or any specified portion of the goods not to be sold; and

(b) direct the supplier of the goods to remove the goods from the display area.

(3) Where the supplier fails to comply with the direction of the price control officer, the price control officer shall seize and place a seal on the goods for the purpose of securing or identifying the condemned goods or the place or container in which condemned goods are kept if the goods is not immediately destroyed.

(4) Where a price control officer place a seal on any seized goods or the place or container in which goods seized under subsection (3) are kept, the price control officer shall

(a) issue to the supplier of the goods a written notice specifying the goods which have been seized; and

(b) immediately notify the Chief Environmental Health Officer of the action.

(5) A person shall not, without the permission of the price control officer or the Chief Environmental Health Officer remove or tamper with any seal placed on

(a) any goods under subsection (3);

(b) any place or container in which goods seized under subsection (3) are kept for the purpose of securing or identifying the seized goods; or

(6) Any person who fails to comply with the direction of a price control officer under subsection (2) or contravenes any provision of subsection (5) commits an offence and is liable on summary conviction to a fine of fifteen thousand dollars.

(7) Where an offence is committed under subsection (6), the person in charge of the goods at the time of the commission of the offence also commits an offence and is liable on summary conviction to a fine of fifteen thousand dollars.

(8) For the purposes of this section, where goods are in any place, the goods are deemed to be in the charge the occupier of the place.

89. Charging consumer for assistance

(1) Subject to subsection (2), a supplier may charge a consumer for assisting the consumer to obtain any benefit, right or protection to which the consumer is entitled under this Act.

(2) Where a supplier charges a consumer under subsection (1), the supplier shall disclose the existence and direct availability of the entitlement to the consumer and the cost, if any, the consumer would be required to pay for the entitlement if the consumer obtained the entitlement directly.

90. Information to consumer

(1) At any time before a consumer agreement is made for any goods, whether sold as used or new, a supplier shall, in addition to the requirements of any other enactment relating to packaging, labelling or description of goods, provide all reasonable information to the consumer concerning the goods being sold.

(2) The information referred to in subsection (1) is

(a) where applicable, the origin, care, terms, components, hazards, proper use, weight, size and instructions for assembly and installation of the goods;

(b) where chargeable, the professional fees of the supplier in respect of the goods; and

(3) Subject to subsection (4), where the consumer believes that he or she fully understands the information given as to the matters specified in subsection (2), the supplier shall require the consumer to sign a statement to the effect that the information was given to the consumer and that the consumer understands.

(4) Subsections (1) and (3) do not apply where in all the circumstances it is not reasonable for the information to be given or for the statement to be signed.

(5) Where a supplier fails to comply with this section, he or she shall, notwithstanding anything to the contrary in the warranty document relating to the goods, be responsible for any damage done to the goods by the consumer that can be directly attributable to the consumer’s lack of information.

(6) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or, to imprisonment for a term not exceeding six months or to both.

91. Disclosure of price of goods or service

(1) A supplier shall not display goods for sale, or offer to supply any service without displaying a price in relation to the goods or service, unless the display is

(a) designed and intended predominantly as a form of advertisement of the supplier, or of the goods or service; and

(b) in the case of goods, in an area within the supplier’s premises to which the public does not ordinarily have access.

(2) For the purposes of this section

(a) a price is displayed in relation to particular goods if it is

(i) annexed or affixed to, written, printed, stamped or located on, or otherwise applied to the goods or to any band, ticket, covering, label, package, reel, shelf or other thing used in connection with the goods or on which the goods are mounted for display or exposed for sale,

(ii) published in relation to the goods in a catalogue available to the public if a time is specified in the catalogue as the time after which the goods may not be sold at that price, and that time has not yet passed or in any other case, the catalogue may reasonably be regarded as not out of date, or

(iii) in any way represented in a manner from which it may reasonably be inferred that the price represented is a price applicable to the goods or service; and

(b) a price is not displayed in relation to goods if

(i) the price was affixed to the goods outside Saint Christopher and Nevis in relation to the supply of the goods outside Saint Christopher and Nevis or

(ii) the display of that price is fully covered and obscured by a second displayed price.

(3) Subject to subsection (4), where a supplier displays goods or offers to supply any service in relation to which more than one price is concurrently displayed, section 124 applies.

(4) Subsection (3) does not apply in respect of the price of the goods or service if the price of the goods or service is determined by

any other law.

(5) Where a supplier has provided an estimate for any service, or goods and services, as contemplated in section 107, the price for that service, or goods and services, must not exceed the estimate unless

(a) the supplier has informed the consumer of the additional estimate charges; and

(b) the consumer has authorized the work to continue.

(6) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

92. Warranties

(1) A supplier shall issue explicit warranties in relation to his goods or services, as the case may be, whether the goods are new or used, and whether the service offered is the repair of any appliance, furniture, equipment or other good.

(2) Where a warranty given by a manufacturer is attached to goods sold, or provided in the course of a service, the supplier is

deemed to have issued to the consumer, the manufacturer’s warranty as an explicit warranty by the supplier; and

(b) notwithstanding any geographical limitations in the warranty,

liable to the consumer under the warranty as if the supplier were the manufacturer.

(3) Where the service provided is the repair or replacement of defective goods

(a) there is implied, a warranty that the repair or replacement is carried out within a reasonable time; and

(b) implied warranties applicable to a contract for the sale of goods apply to repaired or replacement goods.

(4) Implied warranties in the absence of explicit warranties, apply to the sale and repair of goods.

(5) Where a supplier is liable only for the free replacement of parts under a warranty agreement, the supplier shall not require the consumer to use the services of the supplier in effecting the repairs to the equipment as a condition for the free replacement.

(6) In the absence of an explicit warranty, and subject to the standard conditions of warranties, an implied warranty of six months on parts and labour is attached to every transaction.

93. Measurement of goods

(1) A consumer is entitled, when practicable, to check the weight, volume or other measurement of any goods that he or she intends to purchase where the weight, volume or other measurement of the goods materially affects or determines the price of the goods.

(2) For the purposes of subsection (1), a supplier of any goods that is sold by reference to its weight, volume or other measurement shall provide, to the consumer at the time of purchase, appropriate measurement standards in accordance with the Metrology Act, No. 30 of 2012.

94. Written consumer agreement

(1) This section applies only to a continuous service agreement or other prescribed categories of agreements.

(2) A supplier shall deliver, without charge to the consumer, a copy of a document that records a consumer agreement, transmitted to the consumer in a paper form, or in a printable electronic medium.

(3) The Minister may prescribe

(a) categories of additional consumer agreements to which this section applies; and

(b) any specific wording to be included in such a consumer agreement to give full effect to the purposes of this Act.

(4) Irrespective of whether or not a particular written agreement is required in terms of this section

(a) a change to a document recording a written consumer agreement, or an amended consumer agreement, after it is signed by the consumer, if applicable, or delivered to the consumer, is void unless

(i) the change reduces the consumer’s obligations or liabilities under the consumer agreement, or

(ii) after the change is made, the consumer signs or initials in the margin opposite the change; and

(b) if the parties to a written consumer agreement agree to change its terms, the supplier shall deliver to the consumer a document that reflects the amended consumer agreement within twenty business days after the date of the amended consumer agreement.

95. Unlawful provisions of consumer agreement

(1) A supplier shall not include in a consumer agreement for the supply of any goods or service, whether or not it is in writing, an unlawful provision or an unlawful condition.

(2) A provision of a consumer agreement, or a condition to which a consumer agreement is subject, is unlawful if

(a) its general purpose or effect is to

defeat the purpose and policy of this Act,

mislead or deceive the consumer, or

(iii) subject the consumer to fraudulent conduct;

(b) it directly or indirectly purports to

(i) waive or deprive a consumer of a right set out in this Act,

(ii) avoid a supplier’s obligation or duty in terms of this Act,

(iii) set aside or override the effect of any provision of this Act,

(iv) authorize the supplier to do anything that is unlawful in terms of this Act or fail to do anything that is required in terms of this Act;

(i) before the consumer agreement was made, no representations or warranties were made in connection with the agreement by the supplier or a person on behalf of the supplier, or

(ii) the consumer has received any goods or service, or a document that is required by this Act to be delivered to the consumer that has not in fact been delivered or rendered to the consumer;

(d) it expresses an agreement by the consumer to forfeit any money to the supplier if the consumer

(i) exercises the right of rescission under section 77, or

(ii) fails to comply with a provision of the agreement before the consumer receives any goods or service in terms of the agreement;

(e) it expresses, on behalf of the consumer

(i) an authorization for any person acting on behalf of the supplier to enter any premises for the purposes of taking possession of the goods to which the agreement relates,

(ii) an undertaking to sign in advance any documentation relating to enforcement of the agreement, irrespective of whether such documentation is complete or incomplete at the time it is signed, or

(iii) a consent to a pre-determined value of costs relating to enforcement of the agreement except to the extent that is consistent with this Act;

(f) it expresses an agreement by the consumer to

(i) deposit with the supplier, or with any other person at the direction of the supplier, an identity document, credit or debit card, bank account or automatic teller machine access card, or any similar identifying document or device, or

(ii) provide a personal identification code or number to be used to access an account.

(3) Notwithstanding subsection (2)(e)(i), a provision in a consumer agreement, or a condition to which a consumer agreement is subject, is not unlawful if it expresses on behalf of the consumer, an authorization for any person acting on behalf of the supplier to enter any premises for the purposes of taking possession of the goods to which the agreement relates in the case of default.

(4) In any matter before a court or tribunal respecting an agreement that contains a provision contemplated in subsection (2), a court or tribunal shall

(a) sever that unlawful provision from the agreement, or alter it to the extent required to render it lawful, if it is reasonable to do so having regard to the agreement as a whole; or

(b) declare the entire agreement unlawful as from the date that the agreement, or amended agreement, took effect; and

(c) make any further order that is just and reasonable in the circumstances with respect to that unlawful provision, or the entire agreement, as the case may be.

(5) A supplier shall not

(a) directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a primary agreement;

(b) request or demand a consumer to

(i) give the supplier temporary or permanent possession of a document referred to in subsection (2)(f)(i) other than for the purpose of identification, or to make a copy of the document,

(ii) reveal any personal identification code or number contemplated in subsection (2)(f)(ii); or

(c) direct, or knowingly permit, any other person to do anything referred to in this section on behalf of or for the benefit of the supplier.

(6) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

96. Conditions of demanding and accepting payment

(1) A supplier shall not demand or accept payment or other consideration for the supply of goods or service, if at the time of the demand or acceptance, that supplier

(a) does not intend to supply the goods or service;

(b) intends to supply the goods or service which is materially different from the goods or service in respect of which the payment or other consideration is demanded or accepted; or

(c) does not have reasonable grounds to believe that the goods or service will be supplied within the period specified, or if no period is specified, within a reasonable time.

(2) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding three months or to both.

97. Over-selling and over-booking

(1) A supplier shall not accept payment or other consideration for any goods or service if the supplier

(a) has no intention to supply the goods or service;

(b) intends to supply goods or service that is materially different from the goods or service in respect of which the payment or consideration was accepted.

(2) Where a supplier makes a commitment or accepts a reservation to supply goods or service on a specified date or at a specified time, and on the date and at the time contemplated in the commitment or reservation, fails because of insufficient stock or capacity to supply the goods or service or similar or comparable goods or service of the same or better quality, class or nature, the supplier shall

(a) refund to the consumer any amount paid in respect of that commitment or reservation, together with interest at the prescribed rate from the date on which the amount was paid until the date of re-imbursement; and

(b) in addition, compensate the consumer for breach of contract in an amount equal to the full contemplated price of the goods or service that were committed or reserved.

98. Management of pricing

Subject to any other law that determines the price of any goods or service, a supplier may determine any scoring or other evaluative mechanism or model to be used in managing or pricing goods or service offered by the supplier.

99. Sales record

(1) A supplier of goods or service shall provide a written record of each transaction to the consumer to whom the goods or service is supplied, including in that record, the following information

(a) the supplier’s name, or registered business name;

(b) the address of the premises at which or from which the goods or service was supplied;

(d) a name or description of the goods or service supplied or to be supplied;

(e) the unit price for each of the goods or service supplied or to be supplied;

(f) the quantity of each of the goods or service supplied or to be supplied;

(g) the total price of the transaction, before any applicable taxes;

(h) the amount of any applicable taxes;

(i) the total price of the transaction, including any applicable taxes; and

(j) such other information as may be specified under this or any other law.

(2) A written record provided under subsection (1) must be durable.

(3) The Minister may, by notice, exempt any category of goods or service, or circumstance of trade, from the application of subsection (1).

(4) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

100. Utility of sales record

The sales record provided by the supplier under section 97

(a) is adequate proof of the purchase of the goods or service;

and

(b) may be used for the purposes of refund in any of the circumstances specified in this Act.

101. Delivery date

(1) Where

(a) a supplier has advertised a date or period for delivery of any goods, whether new, used or repaired; and

(b) a consumer has entered into a contract with, and given a deposit to the supplier to deliver the goods, that date or period forms part of the contract between the supplier and the consumer.

(2) Where the goods are not delivered to the consumer by that date or within that period, the supplier shall, at the election of the consumer, either —

(a) refund the deposit, together with interest of ten per cent per annum; or

(b) deliver the goods by another date or within another period agreed with the consumer.

(3) A supplier who has advertised a completion or delivery date, and has obtained from the consumer a deposit in cash or kind or both, against the provision of the goods or service, may elect to terminate the contract within seven days after the receipt of the deposit and in such a case, shall refund the full value of the deposit received.

102. Approved and non-approved service

(1) A supplier shall

(a) provide such service as is approved by the consumer; and

(b) not require a consumer to commit to pay for a service which, in addition to the contracted service, may, in the opinion of the supplier, be necessary or appropriate.

(2) A consumer is not liable to pay for any service not approved by him or her.

103. Damage resulting from use of goods or service

(1) A supplier shall, upon presentation by the consumer of a decision from the Board

(a) pay the consumer the sum awarded;

(b) initiate payment of compensation within seven days after the decision is received by the supplier;

(2) Subsection (1) applies in any case where a supplier

(a) undertakes to provide a consumer with goods or a service upon payment of a fee;

(b) provides the declared benefit attached to the service or use of the goods; and

(c) inadvertently causes bodily injury or pecuniary loss to be sustained by the consumer, independent of all other causes or contributory negligence.

(3) A supplier is not relieved of liability if

(a) the consumer fails to avail himself or herself of some other goods or service that may be recommended by the supplier as supplementary or complementary;

(b) he or she has provided complementary goods or service which fail to function well or cause damage or other loss.

(4) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

104. Damaged goods sold to consumer

(1) Where

(a) within the warranty period, goods sold to a consumer fail to provide the benefit and uninterrupted enjoyment for which it was intended; or

(b) the goods are repaired more than once and still fail to provide the benefit and uninterrupted enjoyment for which it was intended; and

(c) the failure is determined by the Board, after a hearing with the supplier, not to be due to negligence or abuse by the consumer, the supplier is responsible for the replacement or repair of the goods, at no cost to the consumer.

(2) The supplier shall, in the event of the repair of the goods referred to in subsection (1)

(a) return the goods to the consumer in a fully repaired and functional state within seven days of receipt of the goods; or

(b) if the goods are not returned to the consumer within seven days, provide the consumer with a temporary substitute of comparative value for the consumer’s uninterrupted use and enjoyment until such time as the goods of the consumer are replaced, or repaired and returned.

105. Return of defective goods

(1) Subject to subsections (3) and (5) where a consumer is encouraged to acquire goods by the supplier’s declaration and description of the goods and the consumer subsequently discovers that the goods are defective in a material particular from the goods that are declared or described, the consumer may return the goods to the supplier.

(2) Where goods are returned under subsection (1) the supplier shall, in exchange for the returned goods

(a) replace the goods with goods declared and described by the supplier within thirty days of the return of the goods to the supplier;

(b) at the election of the consumer, refund the value of the goods or such other amount as may be agreed between the consumer and supplier.

(3) A supplier shall replace or make refunds on the goods returned to him or her under subsection (2) where the goods are returned

(a) in the condition in which it was purchased; or

(b) with minimal damage resulting from reasonable exposure in the normal course of use prior to discovery of the material difference between the goods received and the goods declared and described.

(4) Where there is a dispute as to the condition of the goods, the Board may, upon request, examine the goods with a view to making a determination as to the condition of the goods.

(5) A consumer who acquires goods that in every way is similar or identical to the goods requested or described by the consumer and declared by the supplier is not entitled to a refund if, having left the place from which the supplier sold the goods, the consumer for any reason decides that he or she no longer wants it.

(6) A supplier who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

106. Loss or damage of defective goods or negligence of manufacturer

(1) In the case of goods of a type ordinarily supplied for private use or consumption, where loss or damage

(a) arises from the goods proving defective while in use by a consumer; and

(b) results from the negligence of a person concerned in the manufacture or distribution of the goods,

liability for loss or damage is not excluded or restricted by reference to any term or notice contained in or operating by reference to, a guarantee of the goods.

(2) For the purposes of this section

(a) goods are to be regarded as being in consumer use when a person is using the goods, or is in possession of the goods for use, otherwise than exclusively for a commercial purpose; and

(b) a representation in writing is a guarantee if it contains or purports to contain some promise or assurance however worded or presented, that defects will be corrected by complete or partial replacement, or by repair, monetary compensation or otherwise.

107. Return of materially different goods

(1) Subject to subsections (2) and (3), where a consumer is encouraged to acquire goods by the supplier’s declaration and description of the goods, and the consumer subsequently discovers that the goods acquired are different in a material particular from that intended to be acquired

(a) the consumer may return the goods acquired to the supplier;

(b) the supplier must be afforded a reasonable opportunity to inspect the goods;

(c) if the defect is not fixed after a reasonable time, the supplier shall give to the consumer in exchange for the returned goods, monetary compensation to the value of the goods or another amount agreed between the consumer and the supplier;

(d) the supplier shall not charge the consumer a restocking fee for the returned goods.

(2) Subsection (1) does not apply unless the goods are returned to the supplier in the condition in which the goods were purchased or with minimal damage resulting from reasonable exposure in the normal course of the consumer’s use of the goods before discovery of the material difference between the goods received and the goods that the consumer intended to acquire.

(3) A consumer who acquires goods that is in every way similar or identical to the one requested or described and declared by the supplier is not entitled to a refund if, having left the place from which the supplier sold the goods, the consumer for any reason decides that he or she no longer wants the goods.

108. Return of electrical goods

(1) This section applies where

(a) a consumer purchases electrical goods, believing the goods to be fully functional and operational; and

(b) upon attempting to use the goods, discovers that it is faulty or non-functional.

(2) Where subsection (1) applies, the consumer may return the goods within thirty days.

(3) Unless the supplier is able to establish that the goods were damaged as a direct result of neglect or abuse by the consumer or an Act of God, the consumer is, on return of the goods to the supplier, entitled to

(a) an exchange of the faulty goods for goods that are new, similar goods that are functional; or

(b) a refund of the amount paid by the consumer for the goods.

109. Suppliers offering repair service

(1) A supplier who offers a repair service to a consumer shall keep a record stating

(a) the name, address and telephone number of the consumer;

(b) a reasonably accurate description of the goods to be repaired, including any identification number or mark;

(d) an estimate of the labour and other costs to be paid by the consumer in respect of the repairs to be effected;

(e) the date on which the goods

(i) are received for repair,

(ii) will be ready for delivery.

(2) The supplier shall give a copy of the record under subsection

(1) to the consumer before the repairs are commenced.

(3) A supplier who offers a repair service shall disclose to the consumer any additional related repairs that he or she considers necessary for the consumer to enjoy reasonably long and uninterrupted use of the repaired goods.

110. Promotion of goods or service

(1) A supplier of goods or service shall not promote any goods or service

(a) in a manner that is misleading, fraudulent or deceptive in any way, including in respect of

(i) the nature, properties, advantages or uses of the goods or service,

(ii) the manner in or conditions on which the goods or service may be purchased, leased or otherwise acquired,

(iii) the price at which the goods may be acquired, or the existence of, or relationship of the price to, any previous price, or competitors price for comparable or similar goods or service,

(iv) the sponsoring of any event, or

(v) any other material aspect of the goods or service;

(b) in a manner that is reasonably likely to imply a false or misleading representation concerning the goods or service, as contemplated in section 115;

(d) to be supplied in a manner that is inconsistent with any law; or

(e) in a manner that

(i) is degrading to the dignity of any person,

(ii) depicts, simulates, suggests, represents or reasonably appears to promote a use or application of the goods or service that is inconsistent with any law, or

(iii) implies or expresses a preference for any particular group of consumers distinguishable from the general population on the basis of a prohibited ground of unfair discrimination set out in the Constitution of Saint Christopher and Nevis, except to the extent that particular goods or a service is reasonably intended or designed to satisfy specific needs or interests that are common to or uniquely characteristic of the particular group of consumers.

111. Goods or service acquired by instalment

(1) This section applies to any case where a supplier contracts to provide a consumer with any goods or service over an extended period of time, and to receive periodic payments from the consumer for the goods or service.

(2) The supplier shall

(a) present a claim for the exact amount of, or the exact percentage of, the total value of the goods or service actually received to date by the consumer; and

(b) on presentation of a claim, be entitled to terminate the consumer agreement if payment in full is not made within a reasonable time after the presentation of the claim, or by a predetermined payment date which forms part of the consumer agreement.

(3) In the event that the supplier is unable to present a claim under subsection (2), the supplier may

(a) present the consumer with an estimated claim; and

(b) if the estimated claim is reasonable, request that the consumer pays the estimated amount on the conditions specified in subsection (4).

(4) The conditions referred to under subsection (3) are

(a) the amount paid will be credited to the amount owing at the next time that an accurate claim is presented; and

(b) the supplier shall under no circumstances, be able to terminate the agreement or impose any penalty contained in the agreement in the event of breach by the consumer, solely on the ground that the consumer has not paid the estimated amount, either in full or in part.

(5) A supplier who presents an estimated claim for any goods or service shall present an accurate claim no later than ninety days after presentation of the estimate.

(6) Subsection (5) applies notwithstanding that the consumer of the goods or service does not pay the estimated amount claimed or pays it in full or in part.

112. Apportionment of payment where service not received

(1) Where a service is provided to a consumer

(a) the supplier is deemed to be providing the consumer with a benefit under the consumer agreement;

(b) subsection (2) applies where a fee is collected from the consumer for that service.

(2) Subject to subsection (3), a supplier

(a) is liable to make a full refund to the consumer, if for reasons not attributable to the consumer, the benefit is not received by the consumer; or

(b) shall where the benefit is received only in part

(i) refund a proportionate part of the fees collected, or

(ii) subject to subsection (3), be entitled to receive a similar proportionate part of any unpaid fees.

(3) Subsection (2) does not apply in any case where the consumer contracts to pay the supplier a prescribed fee regardless of whether the consumer receives the benefit.

(4) A supplier who offers a service to a consumer shall

(a) stipulate the extent of the benefit that is deemed to be attached to the service; and

(b) provide the consumer with an appropriate warranty that

(i) the benefit is enjoyed for a reasonable time, subject to the fulfillment of such conditions attached by the supplier as may be reasonable to the enjoyment by the consumer of that benefit, and

(ii) if the benefit is not so enjoyed, the supplier shall again provide the service free of charge to the consumer.

113. Supplier purporting to act on Bill of Sale

(1) A supplier shall not

(a) personally act on the powers contained in a Bill of Sale of property pledged by a consumer; or

(b) employ any person other than a bailiff to recover any or all of the property pledged in the Bill of Sale to the supplier in the event of default in repayment of a loan.

(2) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding three months or to both.

(3) A supplier shall not, in taking action to recover any or all of the property pledged by the consumer in the Bill of Sale to the supplier in the event of default in repayment of a loan, carry out an act of seizure although the indebtedness of the consumer to the supplier has already been discharged or is currently being serviced in accordance with existing contractual provisions.

(4) A supplier who contravenes subsection (3) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding six months or to both.

(5) The court may order a supplier convicted of an offence under subsection (3) to pay to the consumer compensation for the property seized plus an additional amount per day for every day that the consumer has been deprived of the use and enjoyment of the property.

(6) A bailiff who, acting in bad faith, seizes the property of a consumer, commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding three months or to both.

(7) The court may order a bailiff or person convicted under subsection (6) to pay to the consumer compensation for the property seized plus an additional amount per day for every day that the consumer has been deprived of the use and enjoyment of the property.

(8) Any person who

(a) threatens to seize property of a consumer under the powers contained in a Bill of Sale although the indebtedness of the consumer to the vendor has already been discharged; or

(b) recklessly damages property of the consumer while exercising distraint, commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding three months or to both.

(9) The court may order a supplier convicted of an offence to compensate the consumer for all expenses reasonably incurred as a result of the breach and the legal action.

114. Exclusion and restriction from liability from breach of contract and claims

A supplier who in trade or commerce is a party to a contract shall not

(a) when he or she is in breach of contract, exclude or restrict his or her liability in respect of the breach; or

(b) claim to be entitled to render

(i) a contractual performance substantially different from that which was reasonably expected of him or her, or

(ii) no performance in respect of the whole or any part of his or her contractual obligation,

except in so far as the contract term satisfies the requirement of reasonableness under section 167.

115. Liability for breach of duty or obligation

In relation to any breach of duty or obligation, it is immaterial for any purpose of this Part whether the breach was inadvertent or intentional, or whether liability for it arises directly or vicariously.

116. Mediation

A supplier shall ensure that a consumer agreement includes a clause providing for the parties to attempt to settle their disagreements through mediation by the Board before taking the matter to court.

PART VIII

UNFAIR TRADE PRACTICES

117. False, misleading or deceptive representation

(1) It is an unfair practice for a person in the course of trade or commerce to make a false, misleading or deceptive representation or to engage in conduct that is or is likely to be misleading or deceptive, particularly in relation to the nature, manufacturing process, characteristics, suitability for purpose or quality of goods or service.

(2) With respect to any goods or service that is the subject of a consumer agreement or in the marketing of any such goods or service, a supplier shall not, by words or conduct

(a) directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer;

(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception;

(d) fail to correct an apparent misapprehension on the part of a consumer that amounts to a false, misleading or deceptive representation or permit or require any other person to do so on behalf of the supplier.

(3) Without limiting the generality of subsection (1), it is a false, misleading or deceptive representation to falsely state or imply, or allow a consumer to incorrectly believe, that

(a) the supplier has status, affiliation, connection, sponsorship or approval that he or she does not have;

(b) goods or a service

(i) have ingredients, performance characteristics, accessories, uses, benefits, qualities, sponsorship or approval that the goods or a service does not have,

(ii) is of a particular standard, quality, grade, style or model,

(iii) subject to subsection (4), is new or unused, if the goods are not or if the goods are re-conditioned, reclaimed or rebuilt,

(iv) has been used for a period, to an extent, or in a manner that is materially different from the facts,

(v) has been supplied in accordance with a previous representation,

(vi) are available, or can be delivered or performed within a specified time;

(d) a service, part, replacement, maintenance or repair is needed or available;

(e) a specific price advantage exists;

(f) a charge or proposed charge is for a specific purpose;

(g) an employee, salesperson, representative or agent has authority to negotiate the terms of, or conclude, a consumer agreement;

(h) the transaction affects, or does not affect, any rights, remedies or obligations;

(i) a particular solicitation of, or communication with, the consumer is for a particular purpose; or

(j) the consumer will derive a particular benefit if he or she assists the supplier in obtaining a new customer.

(4) A representation contemplated in subsection (3)(b)(iii) to the effect that goods are new is not false, misleading or deceptive if the goods have been used by or on behalf of the manufacturer, importer, distributor or supplier for the purposes of reasonable testing, servicing, preparation or delivery.

(5) A consumer agreement concluded on the basis of a false, misleading or deceptive representation is unenforceable at the option of the consumer.

(6) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six month or to both.

118. Restrictive trade

(1) A supplier shall not adopt trade practices which

(a) tend to bring about manipulation of price or conditions of delivery or affect flow of supplies in the market relating to goods or service in such manner as to impose on the consumer unjustified costs or restrictions;

(b) delay beyond the period agreed to by a supplier in supply of goods or service which has led or is likely to lead to rise in the price;

(c) requires a consumer to buy, hire or avail any goods or, as the case may be, service as a condition precedent to buying, hiring or availing other goods or service.

(2) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

119. Unfair method, deceptive practice or Misleading public

(1) A supplier shall not in the course of trade or commerce, adopt, for the purpose of promoting the sale, use or supply of goods or the provision of any service, an unfair method or unfair or deceptive practice, including the practice of making any statement, whether orally or in writing or by visible representation which

(a) falsely represents that the goods are of a particular kind, standard, quality, grade, quantity, composition, style or model, or have had a particular history or particular previous use;

(b) falsely represents that the service is of a particular kind, standard, quality, or quantity or that the service is supplied by any particular person or by any person of a particular trade qualification or skill;

(d) represents that goods or service has any sponsorship, approval, performance, characteristics, accessories, uses or benefits which the goods or service does not have;

(e) represents that the supplier has any sponsorship, approval, or affiliation which the supplier does not have;

(f) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or service;

(g) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test;

(h) makes to the public a representation in a form that purports to be

(i) a warranty or guarantee of a product or of any goods or service, or

(ii) a promise to replace, maintain or repair goods or any part of any goods, or to repeat or to continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

(i) misleads the public concerning the price at which a product or like product or goods or service, has been or is, ordinarily sold or provided; or

(j) gives false or misleading facts disparaging the goods, service or trade of another supplier.

(2) For the purposes of subsection (1), a statement that is

(a) expressed on any goods offered or displayed for sale, or on its wrapper or container;

(b) expressed on anything attached to, inserted in, or accompanying any goods offered or displayed for sale, or on anything on which the goods are mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public,

is deemed to be a statement made to the public by the person who had caused the statement to be so expressed, made or contained.

(3) Notwithstanding subsection (1)(g), where a defence is raised to the effect that a warranty or guarantee is based on an adequate or proper test, the burden of proof of the defence is on the person raising the defence.

(4) For the purpose of subsection (1)(i), a representation as to price is deemed to refer to the price at which the product or goods or service has been sold or provided by a supplier generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or service has been provided by the person by whom or on whose behalf the representation is made.

(5) A supplier shall not permit the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or service that is not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business carried on, the nature and size of business, and the nature of the advertisement.

(6) For the purposes of subsection (5), “bargain price” means

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the price at which the product advertised or like product is ordinarily sold.

(7) A supplier shall not permit the

(a) offering of gifts, prizes or other items with the intention of not providing them as offered or creating an impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;

(b) conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest.

(8) A supplier shall not withhold from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure, the information about final results of the scheme.

(9) For the purposes of subsection (8), the participants of a scheme are deemed to have been informed of the final results of the scheme where such results are, within a reasonable time, published in the same media in which the scheme was originally advertised.

(10) A supplier shall not permit the sale or supply of goods intended to be used, or that are of a kind likely to be used by a consumer, knowing or having reason to believe that the goods did not comply with the standards prescribed by a competent authority relating to performance, composition, contents, design, construction, finishing or packaging, as are necessary to prevent or reduce the risk of injury to the person using the goods.

(11) A supplier shall not hoard or destroy goods, or refuse to sell the goods or to make it available for sale or to provide any service, if the hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of the goods or service or other similar goods or service.

(12) A supplier shall not manufacture spurious goods or offer such goods for sale or adopt deceptive practices in the provision of a service.

(13) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

(14) A supplier shall not in the course of trade or commerce engage in conduct that is likely to mislead the public as to the nature, manufacturing process, characteristics, suitability for a purpose or quantity of the goods or service as the case may be.

(15) A supplier who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

120. Unreasonable transactions

(1) A supplier shall not supply or agree to supply any particular goods or service to a consumer if the supplier knows, or reasonably ought to have known, or recognized from the interaction between the supplier and the consumer

(a) that the goods or service is materially unsuitable for the purpose to which the consumer intends to apply the goods or service, irrespective of whether the goods or service is of good quality or is reasonably fit for its customary intended purpose; and

(b) that the consumer is unlikely to be able to make such a determination, having regard to the nature of the goods or service, and the consumer’s apparent age, education, experience, familiarity with such goods or service, and general consumer sophistication.

(2) An unreasonable transaction is unenforceable against a consumer.

121. Unfair or unjust transactions

(1) A supplier shall not

(a) offer to supply, supply, or enter into a consumer agreement to supply any goods or service at a price or on terms that are unfair or unjust; or

(b) market any goods or service, or negotiate, enter into or administer a consumer agreement for the supply of any goods or service, in a manner that is unfair or unjust, having regard to

(i) the fair value of the goods or service,

(ii) the circumstances of the consumer agreement,

(iii) the parties to that consumer agreement,

(iv) the relationship of the parties to each other; and

(v) the relative capacity, education, experience, sophistication and bargaining position of the parties.

(2) For the purposes of this section, a consumer agreement is unfair or unjust if

(a) the consumer agreement is excessively one-sided in favour of any person other than the consumer or other person to whom goods or service is to be supplied;

(b) the terms of the consumer agreement are so adverse to the consumer as to be inequitable; or

(c) the consumer relied upon a false, misleading or deceptive representation, or statement of opinion, provided by or on behalf of the supplier, to the detriment of the consumer.

(3) An unfair or unjust transaction is unenforceable against a consumer.

122. Unconscionable conduct

(1) A supplier shall not use physical force, coercion, undue influence, pressure or harassment, unfair tactics or any other conduct, in connection with

(a) the marketing of any goods or service;

(b) the supply of goods or service to a consumer;

(c) the negotiation, conclusion, execution or enforcement of a consumer agreement to supply any goods or service to a consumer;

(d) the demand for, or collection of, payment for goods or service by a consumer; or

(e) the recovery of goods from a consumer.

(2) Without prejudice to subsection (1), it is unconscionable for a supplier to take advantage of the fact that a consumer was substantially unable to protect his or her own interests because of disability, illiteracy, ignorance, inability to understand the language of a consumer agreement, or any other similar factor.

(3) In determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the employer of the person or principal knows or ought to know that

(a) the consumer is not reasonably able to protect his or her interests due to disability, ignorance, illiteracy, inability to understand the language of a consumer agreement or similar factors;

(b) the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(d) there is no reasonable probability of payment of the obligation in full by the consumer;

(e) the terms of the consumer agreement are so adverse to the consumer as to be inequitable;

(f) a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(g) the consumer is being subjected to undue pressure to enter into a consumer agreement.

(4) A consumer agreement concluded on the basis of an unconscionable conduct is unenforceable at the option of the consumer.

(5) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

123. Renegotiation of terms

(1) A person who has custody or control of goods shall not use such custody or control to induce the consumer into renegotiating the terms of a consumer agreement.

(2) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

124. Bait advertising

(1) A person shall not, in the course of trade or commerce, advertise for supply, at a specified price, goods or a service which that person

(a) does not intend to offer for supply; or

(b) has no reasonable grounds for believing he or she can supply, immediately or within a reasonable time,

at that price, for a period and in quantities that are unreasonable, having regard to the nature of the market in which the person carries on business and the nature of the advertisement.

(2) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

125. Dual pricing

(1) Where more than one price is displayed on goods –

(a) the consumer is entitled to pay the lowest of the prices that are displayed on the goods; and

(b) a supplier shall not in the course of trade or commerce supply the goods at a price that is higher than the lowest price displayed on the goods.

(2) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both.

(3) It is a defence to a prosecution of a person for a contravention of this section that

(a) the contravention in respect of which the prosecution was instituted was due to

(i) the act or default of another person, other than a director, employee or agent of the defendant, or

(ii) an accident or to some other cause beyond the control of the defendant; and

(b) the defendant had taken all reasonable precautions and exercised due diligence to avoid the contravention.

126. Referral selling

(1) A supplier shall not induce a consumer to acquire goods or service under a consumer agreement by representing that the consumer will, after the consumer agreement is made, receive a rebate, commission or other benefit in return for giving the supplier the names of consumers or otherwise assisting the supplier to supply the goods or service to other consumers, if receipt of the rebate, commission or other benefit is contingent on an event occurring after the consumer agreement is made.

(2) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

127. Pyramid selling

(1) A person shall not promote, operate or participate in a pyramid selling scheme.

(2) For the purposes of this section, the term “pyramid selling scheme” means a scheme that provides for the supply of goods or a service or both for reward to many participants that constitutes primarily an opportunity to sell an investment opportunity rather than an opportunity to supply goods or a service and is unfair, or is likely to be unfair, to many of the participants in that

(a) the financial rewards of many of the participants are dependent on the recruitment of additional participants; and

(b) the number of additional participants that must be recruited to produce reasonable rewards to participants is either not attainable, or is not likely to be attained, by many of the participants.

(3) In subsection (2) “participants” means participants in the pyramid selling scheme.

(4) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

(5) This section is subject to existing financial services legislation and where there is conflict between that legislation and this section, the financial services legislation takes precedence.

(6) The Board shall cooperate and share information with the Financial Services Regulatory Commission established under the Financial Services Regulatory Commission Act, Cap. 21.10 in the identification and investigation of pyramid selling scheme activity.

128. Non-delivery of goods or service on contracted date

(1) Where it can be proved that a supplier has contracted to provide goods or a service and pursuant to that contract, has received a deposit in cash or kind and on the contracted delivery date is unable to deliver the goods or service or demonstrate that the goods or service is in a reasonably advanced state of production without reasonable excuse, that supplier is deemed to have acted in a fraudulent manner and commits an offence.

129. Printing, publishing, distributing, broadcasting or telecasting

It is not an unfair practice for a person to print, publish, distribute, broadcast or telecast a representation on behalf of a supplier of goods or service which the person accepted in good faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course of business.

130. Rescission

(1) Where a consumer has entered into a consumer agreement in the course of which transaction the supplier has engaged in an unfair practice the consumer agreement may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law.

(2) Where rescission of the agreement under subsection (1) is not possible because

(a) the return or restitution of the goods or service is no longer possible; or

(b) rescission would deprive a third party of a right in the subject-matter of the agreement which the third party acquired in good faith and for value,

the consumer is entitled to recover the amount by which the payment by the consumer under the agreement exceeds the reasonable value of the goods or service or to recover damages, or both.

131. Defences for contravention of this Part

(1) Subject to subsection (2), in a prosecution under this section it is a defence if the defendant proves

(a) that the contravention in respect of which the proceeding was instituted was due to

(i) a mistake,

(ii) reliance on information supplied by another person,

(iii) the act or default of another person,

(iv) an accident, or

(v) some other cause beyond his or her control; and

(b) that he or she took reasonable precautions and exercised due diligence to avoid the contravention.

(2) Where a defence under subsection (1) involves an allegation that a contravention was due to

(a) reliance on information supplied by another person; or

(b) the act or default of another person,

the defendant is not, without leave of the court, entitled to rely on that defence unless he or she has, not later than seven days before the day on which the hearing of the proceeding commenced, served on the person by whom the proceeding was instituted, a notice in writing giving such information as was then in his or her possession that would identify or assist in the identification of the other person.

(3) In a proceeding under this section in relation to a contravention of a provision of this Part by the publication of an advertisement, it is a defence if the defendant proves that he or she

(a) is a person whose business it is to publish or arrange for the publication of advertisements, and that he or she received the advertisement for publication of advertisements in the ordinary course of business; and

(b) did not know and had no reason to suspect that its publication would amount to a contravention of a provision of this Part.

PART IX

CONSUMER SAFETY

132. Interpretation of “consumer safety”

In this Part “consumer safety” includes

(a) the reduction of risks to consumers in the supply of goods or service;

(b) providing information or instructions in regard to the keeping, use or consumption of goods;

133. General consumer safety requirement

(1) A person shall not

(a) supply any goods which fail to comply with the general consumer safety requirements;

(b) offer or agree to supply any goods referred to in paragraph (a); or

(2) For the purposes of this section, goods fail to comply with the general consumer safety requirement if it is not safe having regard to all the circumstances, including

(a) the manner in which, and purposes for which, the goods are being or would be marketed, the packaging of the goods, the use of any mark in relation to the goods and any instructions or warnings which are given or would be given with respect to the keeping, use or consumption of the goods;

(b) any applicable consumer safety standards; and

(3) For the purposes of this section, goods are not regarded as failing to comply with the general consumer safety requirement in respect of –

(a) anything which is shown to be attributable to compliance with any requirement imposed by or under any enactment; or

(b) any failure to do more in relation to any matter than is required by

(i) any consumer safety regulations imposing requirements with respect to that matter,

(ii) any standards of consumer safety prescribed for the purposes of this section and imposing requirements with respect to that matter, or

(iii) any provision of any enactment imposing such requirements with respect to that matter as are designated for the purposes of this subsection by any such enactment.

(4) In any proceedings against a person for an offence under this section in respect of any goods it is a defence for him or her to show that he or she supplied the goods, offered or agreed to supply the goods or, as the case may be, exposed or possessed the goods for supply in the course of carrying on a retail business neither knowing nor having reasonable grounds for believing that the goods failed to comply with the general consumer safety requirements.

(5) For the purposes of subsection (4), goods are supplied in the course of carrying on a retail business if

(a) it is supplied in the course of carrying on a business of making a supply of consumer goods available to persons who generally acquire the goods for private use or consumption whether or not the goods are acquired for a person’s private use or consumption; and

(b) the description of the goods the supply of which is made available in the course of that business do not, to a significant extent, include manufactured or imported goods which have not previously been supplied in Saint Christopher and Nevis.

(6) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

134. Information on goods with inherent risk

(1) A supplier shall provide consumers with the relevant information

(a) to assess the risks inherent in goods or where such risks are not immediately obvious without adequate warning; and

(b) to take precautions against those risks.

(2) A supplier shall adopt measures to enable the consumer to

(a) be informed of the risks which the goods might pose; and

(b) take appropriate action to avoid such risks by warning the

consumer as to the risks.

(3) The measures referred to under subsection (2) include, except where it is not reasonable to do so, an indication by means of the product or its packaging of

(a) the name and address of the producer; and

(b) the product reference or where applicable the batch of products to which it belongs.

(4) A supplier shall, within the limits of his or her business, monitor the safety of such goods.

135. Consumer safety regulations

(1) The Minister may, after consultation with the Bureau, make Regulations for the purpose of ensuring that

(a) goods are safe;

(b) goods which are unsafe, or would be unsafe in the hands of persons of a particular description, are not made available to persons generally or, as the case may be, to persons of that description; and

(2) Without prejudice to the generality of subsection (1), consumer safety regulations may contain provisions

(a) with respect to the performance, composition or contents, design, construction, finish or packaging of goods to which this section applies, and with respect to other matters relating to such goods;

(b) with respect to the giving, refusal, alteration or cancellation of approvals of such goods, of descriptions of such goods or of standards for such goods;

(d) prescribing the fees to be paid on the giving or alteration of any approval under the regulations and on the making of an application for such an approval or alteration;

(e) with respect to appeals against refusals, alterations and cancellations of approval given under the regulations and against the conditions contained in such approvals;

(f) for requiring goods to which this section applies to be approved under the regulations or to conform to the requirements of the regulations or to descriptions or standards specified in or approved by or under the regulations;

(g) with respect to the testing or inspection of goods to which this section applies, including provision for determining the standards to be applied in carrying out any test or inspection;

(h) with respect to the ways of dealing with goods of which some or all do not satisfy a test required by or under the regulations or a standard connected with a procedure so required;

(i) requiring a mark, warning or instruction or any other information relating to goods to be put on or to accompany the goods or to be used or provided in some other manner in relation to the goods, and for securing that inappropriate information is not given in relation to goods by means of misleading marks or otherwise;

(j) prohibiting persons from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply, goods and component parts and raw materials for goods;

(k) requiring information to be given to any such person as may be determined by or under the regulations for the purpose of enabling that person to exercise any function conferred on him or her by the regulations.

(3) Consumer safety regulations made under this section may

(a) contain different provisions for different cases;

(b) provide for exemptions from any provisions of the regulations;

136. Contravention of consumer safety regulations

A person who contravenes any consumer safety regulations commits an offence.

137. Declaration of unsafe goods

(1) Where it appears to the Director that goods of a particular kind will or may cause injury, loss or damage to any person, the Director may, by notice published in the Gazette and at least two newspapers in circulation or any other media in Saint Christopher and Nevis, declare the goods to be unsafe goods.

(2) A notice under subsection (1) remains in force until the end of eighteen months after the date of publication of the notice, unless it is revoked before the end of that period.

138. Imposition of permanent ban

(1) Where

(a) a period of eighteen months has elapsed after the date of publication of a notice declaring goods to be unsafe goods; and

(b) there is no prescribed consumer product safety standard in respect of the goods,

the Director may, by notice published in the Gazette and at least two newspapers in circulation in Saint Christopher and Nevis, impose a permanent ban on the goods.

(2) A supplier shall not supply goods in contravention of the permanent ban imposed under subsection (1).

(3) A supplier who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

139. Establishment of a regional alert system

(1) The Minister may, after consultation with other Ministers responsible for consumer protection in the Member States, establish a modality to exchange information with respect to inherently dangerous goods circulating in the Member States.

(2) A regional alert system shall be designated by officials who are responsible for consumer protection in the Member States.

PART X

RECALL OF GOODS

140. Voluntary recall

(1) Where a supplier voluntarily takes action to recall goods because the goods will or may cause injury to any person, the supplier shall, within five days after taking that action, give a notice in writing to the Director

(a) stating that the goods are subject to recall;

(b) setting out the nature of the defect in, or dangerous characteristic of the goods; and

(2) A supplier who refuses to take action to recall goods likely to cause injury to any person commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars, or to imprisonment for a term not exceeding six months or to both.

141. Compulsory recall

(1) Subject to section 145, the Director may, issue a notice requiring the recall of goods that is intended to be used or is of a kind likely to be used by a consumer to any supplier if

(a) the goods appear to the Director to be goods of a kind that will or may cause injury to any person when used for the purpose for which the goods are intended or are likely to be used;

(b) it appears to the Director that the supplier does not comply with the consumer safety regulations under section 134;

(c) the goods are subject to a notice declaring the goods to be unsafe under section 136 or imposing a permanent ban on the goods under section 137; and

(d) the supplier has not taken satisfactory action to prevent the goods from causing injury to any person.

(2) A notice under subsection (1) may require the supplier to whom the notice is issued to do one or more of the following

(a) take action within the period specified in the notice to recall the goods identified in the notice;

(b) disclose to the public, or to a class of persons specified in the notice, in the manner and within the period specified in the notice, one or more of the following

(i) the nature of a defect in, or a dangerous characteristic of the goods identified in the notice,

(ii) the circumstances, being circumstances identified in the notice, in which the use of the goods is dangerous,

(iii) procedures for disposing the goods specified in the notice;

(c) inform the public, or a class of persons specified in the notice in the manner and within the period specified in the notice that the supplier undertakes to do whichever of the following is appropriate

(i) except where the notice identifies a dangerous characteristic of the goods, repair the goods,

(ii) replace the goods,

(iii) refund to a person to whom the goods was supplied, whether by the supplier or by any other person, the price of the goods.

(3) A notice under subsection (1) may give directions as to the manner in which the person is to carry out a recall of goods required under the notice.

(4) A notice issued under this section must be in writing and published in the Gazette and at least two newspapers in circulation in Saint Christopher and Nevis.

142. Repair and replacement of goods

Where the supplier, under section 140(2)(c), undertakes to

(a) repair the goods, the supplier shall cause the goods to be repaired so that

(i) any defect in the goods identified is remedied, and

(ii) the goods comply with the consumer safety regulations;

(b) replace the goods, the supplier shall replace the goods with like goods which

(i) if a defect in or a dangerous characteristic of the goods was identified in the compulsory recall notice under section 140 does not contain that defect or have that characteristic, and

(ii) if there is a prescribed consumer product safety standard in respect of goods of that kind, comply with that standard;

(c) repair the goods or replace the goods, the cost of the repair or replacement, including any necessary transportation costs is borne by the supplier.

143. Refund

Where under the compulsory recall notice under section 141, the supplier chooses to refund the price of the goods and a period of more than twelve months has elapsed since the person, whether or not the person to whom the refund is to be made, acquired the goods from the supplier, the supplier shall pay the full amount of the refund specified in the notice.

144. Effect of recall notice

(1) Where a compulsory recall notice under section 140 is in force in relation to a supplier, the supplier

(a) shall comply with the requirements and directions in the compulsory recall notice; and

(b) shall not

(i) where the compulsory recall notice identifies a defect in, or a dangerous characteristic of the goods, supply the goods of the kind to which the compulsory recall notice relates which contains that defect or has that characteristic, or

(ii) in any other case, supply the goods of the kind to which the compulsory recall notice relates.

(2) A supplier who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment not exceeding six months or to both.

145. Loss or damage caused by contravention of recall notice

Where a supplier fails to comply with a compulsory recall notice under section 140 and a person suffers injury, loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods, that person is deemed for the purpose of this Act to have suffered the injury, loss or damage by the failure of the supplier to comply with the compulsory recall notice.

146. Opportunity for hearing

(1) Subject to section 148, where the Director proposes to publish a notice declaring goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling goods under section 140 in relation to goods of a particular kind, the Director shall prepare

(a) a draft of the notice proposed to be published; and

(b) a summary of the reasons for the proposed publication of the notice.

(2) The Director shall by notice published in the Gazette and at least two newspapers of general and weekly circulation in Saint Christopher and Nevis, invite any supplier, who supplied or proposes to supply goods of that kind to notify the Board within the period of ten days commencing on the day specified in the notice not being earlier than the day on which the notice is published, whether the supplier wishes the Board to hold a hearing in relation to the proposed publication of the notice.

(3) A notice published under subsection (2) must set out a copy of the draft notice declaring goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling goods under section 140 in relation to goods and a copy of the summary of the reason for the proposed publication of the notice.

(4) Where a supplier does not notify the Board in writing within the period specified in subsection (2) or within such longer period as the Board allows, that the supplier wishes the Board to hold a hearing in relation to the proposed publication of the notice declaring the goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling the goods under section 140 the Board shall notify the Director.

(5) Where a supplier notifies the Board in writing within the period specified in subsection (2) or within such longer period as the Board allows that the supplier wishes the Board to hold a hearing in relation to the proposed publication of a notice declaring goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling goods under section 140, the Board shall appoint a day, being not later than fourteen days after the end of that period, time and place for the holding of the hearing, and give notice of the day, time and place so appointed to the Director and to each supplier who so notified the Board.

(6) At a hearing held pursuant to this section

(a) the Board is represented by a member or members nominated by the Chairperson;

(b) each supplier who notified the Board in accordance with subsection (5) is entitled to be present or to be represented;

(c) any other person whose presence at the hearing is considered by the Board to be appropriate is entitled to be present or to be represented;

(d) the Director or a person nominated in writing by the Director is entitled to be present; and

(e) the procedure to be followed is as determined by the Board.

(7) The Board shall cause a record of proceedings at a hearing held pursuant to this section to be kept.

(8) The Board shall, as far as is practicable, ensure that each person who, in accordance with subsection (6), is entitled to be present or who is representing such a person at a hearing is given a reasonable opportunity at the hearing to present his or her case and, in particular, to inspect any documents which the Board proposes to consider for the purpose of making a recommendation after the conclusion of the hearing.

(9) Notwithstanding subsection (8), there is no obligation to afford an opportunity to inspect any document that contains particulars of a secret formula or process, and to make submissions in relation to such documents.

147. Recommendation of the Board

(1) As soon as is practicable after the conclusion of a hearing in relation to the proposed publication of a notice declaring goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling goods under section 140, the Board shall

(a) by notice in writing given to the Director, recommend that

(i) the Director shall publish the notice declaring the goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling the goods under section 140 in the same terms as the draft notice referred to in section 145,

(ii) the Director shall publish the notice declaring the goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling the goods under section 140 with such modification as is specified by the Board, or

(iii) the Director shall not publish the notice declaring the goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling the goods under section 140; and

(b) cause a copy of the notice in writing that is given to the Director under paragraph (a) to be given to each supplier who was present or represented at the hearing.

(2) As soon as is practicable after the conclusion of a hearing in relation to a notice declaring goods to be unsafe that has been published under section 136, the Board shall

(a) by notice in writing given to the Director, recommend that the notice declaring the goods to be unsafe under section 136

(i) remains in force,

(ii) be varied, or

(iii) be revoked; and

(b) cause a copy of the notice in writing that is given to the Director under paragraph (a) to be given to

(i) the Board member who was present at the hearing,

(ii) each supplier who was present or represented at the hearing,

(iii) any other person whose presence at the hearing was considered by the Board to be appropriate.

148. Director to have regard to recommendation of the Board

Where the Board under section 146 makes a recommendation to the Director in relation to the proposed publication of a notice declaring goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling goods under section140(1) or in relation to a notice that has been published declaring goods to be unsafe under section 136, the Director shall have regard to the recommendation.

149. Exception in case of danger to public

(1) Where it appears to the Director that goods of a particular kind creates an imminent risk of death, serious illness or serious injury, the Director shall, without delay, publish a notice in the Gazette and at least two newspapers in general and at least weekly circulation in Saint Christopher and Nevis or any other medium declaring the goods to be unsafe under section 136, imposing a permanent ban under section 137 or compulsorily recalling the goods under section 140(1) in relation to the goods.

(2) Where the Director publishes a notice under subsection (1)

(a) in a case where the notice is published before the Director takes any action under section 145(1) in relation to goods of a particular kind, section 145 does not apply in relation to the action that the Director may take under section 136 or 140(1) in relation to goods of that kind;

(b) in any other case, the Director may publish the notice under this section without regard to the action taken under section 145(1);

(c) the Director shall inform the Chief Medical Officer, the Director of the Bureau and the Comptroller of Customs, of the publication.

150. Copies of notices

Where the Director publishes a notice in writing under section 145 or 148(1), the Director shall, within two days after the publication of that notice, or, if it is not practicable to do so within that period, as soon as is practicable after the end of that period

(a) cause a copy of the notice to be given to each person who, to the knowledge of the Director supplies goods of the kind to which the notice relates;

(b) cause a copy of the notice to be published in the Gazette or two newspapers in general or at least weekly circulation in Saint Christopher and Nevis or any other media.

151. Notification of persons outside Saint Christopher and Nevis

Where the Director publishes a notice in writing under section 145 or 148(1), the Director shall, as soon as is practicable

(a) cause a copy of the notice to be published on the Department’s website; and

(b) cause a copy of the notice to be submitted to any person or body responsible for consumer affairs of any other relevant country.

152. Right of appeal against notice

Where a supplier is aggrieved by any notice sent to him or her, that supplier may, at any time before the notice takes effect, appeal against the notice to the Appeals Tribunal.

153. Certain action not to affect insurance contracts

The liability of an insurer under a contract of insurance with a supplier being a contract relating to

(a) the recall of goods supplied or proposed to be supplied by that supplier; or

(b) that liability of the supplier with respect to the possible defects in the goods supplied or proposed to be supplied by that supplier,

is not affected by reason only that the supplier gives to the Board, Director or authorized officer information relating to any goods supplied or proposed to be supplied by that supplier.

PART XI

PRODUCT LIABILITY

154. Interpretation: Part XI

(1) In this Part

“agricultural produce” means any produce, whether of the soil or otherwise of stock- farming or of fisheries;

“damage” means death or personal injury to any person or any loss of or damage to any property except land;

“manufacture” in relation to animals or agricultural produce, includes to rear or grow;

“producer” in relation to a product, means the person who manufactured the product;

“product” means any goods, including an animal or agricultural produce reared or grown for supply, and, subject to subsection (2), includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise.

(2) For the purposes of this Part, a person who supplies a product in which other products are comprised, whether by virtue of being component parts or raw materials or otherwise, is not treated by reason only of his or her supply of that product as supplying any of the other products so comprised.

155. Liability for defects

(1) Subject to this Part, where damage is caused wholly or partly by a defect in a product

(a) the following persons are liable for the damage

(i) the producer of the product,

(ii) a person who, by putting his or her name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself or herself out to be the producer of the product, and

(iii) a person who has imported the product into Saint Christopher and Nevis in the course of business in order to supply the product to another;

(b) a person who supplied the product, whether to the person who suffered the damage, to the producer of a product in which the product in question is comprised or to any other person, is liable for the damage if

(i) the person who suffered the damage requests the supplier to identify one or more of the persons, whether still in existence or not, to whom paragraph (a) applies in relation to the product,

(ii) that request is made within a reasonable time after the damage occurs, and

(iii) the supplier fails, within a reasonable time after receiving the request, to comply with the request or to identify the person who supplied the product to him or her.

(2) Where two or more persons are liable by virtue of this Part for the same damage, the liability is joint and several.

(3) This section is without prejudice to any liability arising otherwise than by virtue of this Part.

156. Defect inferred

(1) A defect in a product is inferred for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect.

(2) In determining for the purposes of subsection (1) what persons are generally entitled to expect in relation to a product, all the circumstances must be taken into account, including –

(a) the manner in which and the purposes for which the product has been marketed, its make-up, the use of any mark in relation to the product and any instructions, for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;

(b) what might reasonably be expected to be done with or in relation to the product; and

(3) Notwithstanding subsections (1) and (2), a defect is not inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.

(4) For the purposes of this section “safety”, in relation to a product, includes safety with respect to products comprised in that product and safety in the context of risks of damage to property and in the context of risks of death or personal injury.

157. Damage giving rise to liability

(1) A supplier is not liable under section 157 for any damage to any property which, at the time of the damage, is not

(a) of a description of property ordinarily intended for private use, occupation or consumption; and

(b) intended by the person suffering the damage mainly for his or her own private use, occupation or consumption.

(2) In determining for the purposes of this Part who has suffered damage to property and when any such damage occurred, the damage is regarded as having occurred at the earliest time at which a person with an interest in the property had knowledge of the material facts about the damage.

(3) For the purposes of subsection (2)

(a) a person’s knowledge includes knowledge which he or she might reasonably have been expected to acquire

(i) from facts observable or ascertainable by him or her, or

(ii) from facts ascertainable by him or her with the help of appropriate expert advice which it is reasonable for him or her to seek;

(b) the material facts about any damage to property are such facts about the damage as would lead a reasonable person with an interest in the property to consider the damage sufficiently serious to justify instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(4) A person is not taken by virtue of this subsection to have knowledge of a fact ascertainable by him or her only with the help of expert advice unless he or she has failed to take all reasonable steps to obtain and, where appropriate, to act on that advice.

158. Prohibition on exclusions from liability

The liability of a supplier to a person who has suffered damage caused wholly or partly by a defect in a product is not limited or excluded by any term in the consumer agreement, by any notice or by any other provision.

159. Defences in civil proceedings

(1) In any proceedings under this Part in respect of a defect in a product it is a defence to show that

(a) the defect is attributable to compliance with a requirement imposed by or under any enactment;

(b) the product was not at any time supplied by the defendant;

(i) that the only supply of the product to another by the supplier was otherwise than in the course of a business of the supplier,

(ii) that section 132(1)(a) does not apply to the supplier, or applies to him or her by virtue only of things done otherwise than with a view to profit;

(d) the defect did not exist in the product at the time;

(e) the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it has existed in his or her products while they were under his or her control; or

(f) the defect constituted a defect in a product that was wholly attributable to the design of the subsequent product or to compliance by the producer to the product in question with instructions given by the producer of the subsequent product.

(2) In this section “in the course of a business” means the daily or routine peculiar to a trade involving purchase, production and sale of usual goods or service and payment and receipt of money.

PART XII

DISTANCE SELLING

160. Interpretation: Part XII

(1) In this Part “distance contract” means any contract concerning goods or services concluded between a supplier and a consumer under an organized distance sales or service provision scheme run by the supplier, who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded.

(2) A distance contract between a supplier and a consumer in a Member State is effective only if the Member State enters into an Agreement or Protocol under Article 170 of the Revised Treaty with provisions relating to judicial and administrative redress, appointment of a focal point, sanctions, and other information necessary to enforce the distance contract in the Member State.

(3) A distance communication includes the use of electronic mail and electronic commerce by way of letters, catalogues, by facsimile machine, telephone and television.

161. Application: Part XII

This Part does not apply to a contract

(a) relating to a financial service;

(b) concluded by means of automatic vending machines or

automated commercial premises;

(d) concluded at an auction.

162. Agreement regarding distance selling contract

(1) If a Member State enters into an agreement with Saint Christopher and Nevis pursuant to section 159(2), the Minister may, by order published in the Gazette, give legal effect to the agreement.

(2) An order made under this section may contain such consequential, supplemental or ancillary provisions as appear to the Minister to be necessary or expedient for the purpose of giving legal effect to an agreement made pursuant to subsection (1).

(3) If a Member State amends an agreement made pursuant to section 159(2), the Minister may amend an order published under subsection (1).

(4) Every order made under this section is subject to negative resolution.

163. Prior information requirements

(1) Subject to subsection (2), prior to the conclusion of any distance contract, the supplier shall provide the consumer with the following information

(a) the identity of the supplier and, in the case of a contract requiring payment in advance, his or her address;

(b) a description of the main characteristics of the goods or service;

(d) delivery costs, where appropriate;

(e) the arrangements for payment, delivery or performance;

(f) the existence of a right of cancellation, except in certain cases where this right does not exist;

(g) the cost of using the means of distance communication, where it is calculated other than at the basic rate such as premium phone lines;

(h) the period for which the offer or the price remains valid; and

(i) where appropriate, the minimum duration of the distance contract in the case of a contract for the supply of goods or service to be performed on a one-time basis or recurrently.

(2) The information under subsection (1) must be provided in a clear and comprehensible manner and in good time before the conclusion of any distance contract.

(3) In a distance contract for the sale of goods, the consumer must receive confirmation of the information under subsection (1) in an enduring medium accessible by him or her.

164. Acceptance or refusal of distance contract

A supplier shall provide the consumer with an express authority to accept or refuse the distance contract and to correct errors immediately before entering into it.

165. Right of cancellation

(1) A consumer who is party to a distance contract may within seven working days cancel the contract without having to give any reason.

(2) A consumer may cancel a distance contract within fourteen days after the date the distance contract is entered into, if

(a) the supplier did not disclose to the consumer the information required under section 162;

(b) the supplier did not provide the consumer an express opportunity to accept or refuse the distance contract or to correct errors immediately before entering into it.

(3) Where a consumer cancels the distance contract under subsection (1), the supplier shall not impose a penalty and subject to subsection (5), provide a full refund of the direct costs of the goods payable.

(4) A supplier shall refund the consumer within thirty days of the cancellation.

(5) Subsection (3) does not apply to

(a) gaming or lottery services;

(b) travel services;

(d) imaging or photography services;

(e) records;

(f) computer software;

(g) electronic storage devices;

(h) newspapers, periodicals and magazines;

(i) any other goods or service which provides an immediate benefit to the consumer and was used by the consumer.

166. Payment by credit or debit card

A consumer may request cancellation of a payment to the supplier where fraudulent use is made of his or her credit or debit card by that supplier and the consumer is to be re-credited with the sums paid.

167. Performance

(1) Unless the parties have agreed otherwise, the supplier shall execute an order made by a consumer within thirty days from the day following that on which the consumer forwarded his or her order to the supplier.

(2) Where a supplier is unable to perform the distance contract because the goods or service is not available, the supplier shall inform the consumer of the situation and refund any sums received within thirty days.

PART XIII

MISCELLANEOUS

168. Reasonableness

(1) For the purposes of this Act, a consumer agreement satisfies the condition of reasonableness only if the term is a fair and reasonable one to be included in the consumer agreement, having regard to the circumstances which were, or ought reasonably to have been known to, or in the contemplation of the parties, when the consumer agreement was made.

(2) Without limiting the generality of subsection (1), where a person seeks to restrict liability to a specified sum of money by reference to a notice of a term of the consumer agreement, and the question arises, under this Act or any other enactment, as to whether the term or notice satisfies the requirement of reasonableness regard must be had in particular to —

(a) the resources which the person could expect to be available to him or her for the purpose of meeting the liability if it arises; and

(b) the extent to which it was open to that person to cover himself or herself by insurance.

(3) The onus of proving that a term or notice satisfies the requirement of reasonableness lies on the person who claims that it does.

169. Ambiguities to benefit consumer

In any matter brought before the Board or a court, the Board or the court, as the case may be, shall

(a) if a provision of this Act, read in context, can be reasonably construed to have more than one meaning, prefer the meaning that best promotes the spirit and purposes of this Act, and will best improve the realization and enjoyment of consumer rights generally; and

(b) strictly interpret information that is required to be disclosed under this Act and any document prepared or published by or on behalf of a supplier or required to be produced by a supplier, to the benefit of the consumer, so that

(i) any ambiguity that allows for more than one reasonable interpretation of a part of such information or document is resolved to the benefit of the consumer, and

(ii) any restriction, limitation, exclusion or deprivation of a consumer’s legal rights set out in such a document or notice is limited to the extent that a reasonable person would ordinarily contemplate or expect, having regard to the content of the document, the manner and form in which it was prepared and presented, and the circumstances of the transaction or agreement.

170. Trade coupons and similar promotions

(1) A person shall not offer any prize with the intention of not providing it, or providing it other than as offered.

(2) A document setting out an offer contemplated in subsection (1) must fully and clearly state

(a) the nature of the prize being offered;

(b) the goods or services to which the offer relates;

(d) any person from whom, any place where, and any date and time on or at which the prospective consumer may receive the benefit; and

(e) a date after which such offer is no longer valid.

171. No refund signs, restocking etc.

(1) A supplier shall not

(a) display a “no refund” sign or similar notice;

(b) deny a consumer his or her right to a refund when there is a legitimate problem with something that he or she bought.

(2) A supplier shall publicly and clearly display its return and restocking policies in a manner that would allow all consumers to be notified of the policy and any restocking fees, before a purchase is made.

(3) A supplier may charge a restocking fee only if the product is returned in such a state that it cannot be resold at the original price.

172. Promotional competitions

(1) A person shall not directly or indirectly inform a consumer that the consumer

(a) has won a competition, if

(i) no competition has in fact been conducted,

(ii) the consumer has not expressly or implicitly entered into such a competition, or has not in fact won the competition,

(iii) the prize for that competition is subject to a previously undisclosed condition, or

(iv) the consumer is required to offer further consideration for the prize, after the results of the competition have been announced; or

(b) has a right to a prize or benefit

(i) that the consumer has not solicited or to which the consumer does not in fact have a right,

(ii) if the prize or benefit was generally available or offered to all similar prospective consumers or class of prospective consumers,

(iii) if, before becoming eligible to receive the prize or benefit, the consumer is required to offer further consideration for the prize or to purchase any particular goods or services.

(2) The promoter of a promotional competition shall

(a) not require any consideration to be paid by or on behalf of any participant in the promotional competition;

(b) file a copy of the competition rules in the prescribed manner and form with the Board no later than the date on which consumers are first able to participate in the competition;

(d) not award a prize in a competition to

(i) a winner of the competition if it is absolutely unlawful to supply those goods or services to the prize winner, but this sub-paragraph does not preclude a prize to a person merely because that person’s right to possess or use the prize is or may be restricted or regulated by, or otherwise subject to, any public regulation, or

(ii) any person who is a director, member, partner, employee or agent of, or consultant to the promoter, or any other person who directly or indirectly controls, or is controlled by, the promoter, or to a supplier of goods or services in connection with that competition.

(3) For greater certainty in applying subsection (2)(a), a promoter shall be regarded as having required or received consideration in respect of a promotional competition if

(a) the participant is required to pay any consideration, directly or indirectly for the opportunity to participate in the promotional competition, for access to the competition, or for any device by which a person may participate in the competition;

(b) participation in the promotional competition requires the purchase of any goods or services, and the price charged for those goods or services is more than the price, excluding discounts, ordinarily charged for those or similar goods or services without the opportunity of taking part in a promotional competition.

(4) An offer to participate in a promotional competition must be in writing, and must fully and clearly state

(a) the benefit or competition to which the offer relates;

(b) the steps required by a person to accept the offer or to participate in the competition;

(d) the maximum number of potential participants in the competition, and the odds of winning any particular prize in that competition;

(e) the medium through or by which the results of the competition will be known, if any; and

(f) any person from whom, any place where, and any date and time on or at which the successful participant may receive any prize.

(5) The requirements of subsection (4) may be satisfied

(a) directly on any medium through which a person participates in a promotional competition;

(b) on a document accompanying any medium contemplated in paragraph (a); or

(i) is published during the time and throughout the area in which the promotional competition is conducted,

(ii) draws attention to and is clearly associated with the promotional competition.

(6) The right to participate in a promotional competition is fully vested in a person immediately upon

(a) complying with any conditions that are required to earn that right; and

(b) acquiring possession or control of any medium through which a person may participate in that promotional competition.

(7) The right to any benefit or right conferred on a person as a result of that person’s participation in a promotional competition is fully vested immediately upon the determination of the results of the competition.

(8) A right contemplated in subsection (6) or (7) must not be

(a) made subject to any further condition; or

(b) contingent upon a person

(i) paying any consideration to the promoter for the prize, or

(ii) satisfying any further requirements than those stipulated in terms of subsection (4).

(9) The Minister may, after consultation with the Board, prescribe–

(a) a monetary threshold for the purpose of excluding competitions with low value prizes from the definition of “promotional competition”;

(b) minimum odds for prizes or categories of prizes offered in terms of any promotional competition;

(d) audit and reporting requirements in respect of promotional competitions.

(10) A promoter shall not continue advertisements of the promotional competition after the promotional competition is held.

(11) A promoter who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or, to imprisonment for a term not exceeding six months or to both.

(12) In this section –

“participant” means a person who expressly or implicitly enters into a promotional competition;

“promoter” means a person who directly or indirectly promotes, sponsors, organizes or conducts a promotional competition, or for whose benefit such a competition is promoted, sponsored, organized or conducted.

173. Prohibition and privilege

(1) A person shall not, without the consent in writing given by or on behalf of the Chairperson, publish or disclose to another person, otherwise than is necessary in the course of his or her duties, the contents of any documents, communication or information whatsoever, which relate to, and have come to his or her knowledge in the course of his or her duties under this Act.

(2) Anything said or information supplied or any document produced by any person for the purpose of, or in the course of an investigation or proceeding before the Board under this Act, is privileged in the same manner as if the investigation or proceeding were a proceeding in a court of law.

(3) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars and in default of payment of the fine, to imprisonment for a term not exceeding six months or to both.

174. Secrecy

The Board and every person concerned with the administration of this Act, shall regard as secret and confidential all documents, information or matters disclosed in the administration of this Act except disclosures which the Board considers necessary in the discharge of its functions and which shall not be deemed inconsistent with any duty imposed under this section.

175. Channel of communication

(1) All communication and correspondence between the Board and the Department shall be conducted through the office of the Director.

(2) The Director shall ensure that all communication and correspondence between the Board and the Department is transmitted to the appropriate party in a speedy and efficient manner.

176. Offences

A person who

(a) willfully makes a false statement to mislead or misleads or attempts to mislead the Board or any person in the discharge of functions under this Act; or

(b) without lawful justification or excuse

(i) obstructs, hinders or resists the Board or any other person in the discharge of functions under this Act,

(ii) fails to comply with any lawful requirement of the Board or any other person under this Act; or

commits an offence and is liable on summary conviction to a fine not exceeding three thousand dollars or to imprisonment for a term not exceeding three months or to both.

177. Offences by body corporate

Where an offence under this Act has been committed by a body corporate, notwithstanding and without prejudice to the liability of that body, any person who at the time of commission of the offence was a director, general manager, secretary or other like officer of that body or was purporting to act in any such capacity is

(a) subject to subsection (2), liable to be prosecuted as if he or she has personally committed that offence; and

(b) if on prosecution it is proved to the satisfaction of the court that he or she consented to, or conspired in, or did not exercise all such reasonable diligence as he or she ought in the circumstances to have exercised to prevent the offence, having regard to the nature of his or her functions in that capacity and to all the circumstances,

liable to the like conviction and punishment as if he or she had personally been guilty of that offence.

(2) A person shall not be charged under subsection (1) except upon the direction of the Attorney General.

178. Protection of officers of the Department

(1) A civil action, suit or other proceeding shall not be brought or instituted personally against any officer of the Department in respect of any act or omission done in good faith in the due performance of his or her functions.

(2) A civil action, suit or other proceedings shall not be brought or instituted as a result of the act or omission of any officer of the Department unless

(a) the civil action, suit or other proceeding is filed within twelve months from the date of the act or omission complained of; and

(b) notice of intended action has been given one month before the civil action, suit or other proceeding is brought or instituted.

(3) The notice under subsection (2)(b) must

(a) be in writing;

(b) specify the grounds of action;

179. General penalty

A person who contravenes this Act commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or a term or imprisonment for a term not exceeding six months or to both.

180. Amendment of Schedules

The Minister may, by order published in the Gazette, amend the Schedules to this Act.

181. Regulations

(1) The Minister may make Regulations for the purposes of giving effect to the provisions of this Act.

(2) Without prejudice to the generality of subsection (1), the Minister may make Regulations to

(a) regulate the distribution, purchase or sale of goods or any class or description of goods;

(b) provide for the recall of certain goods and services which are dangerous or hazardous to safety and the refund or remission by the vendor of the purchase price paid;

(c) require persons carrying on or employed in connection with any trade or business to furnish information concerning all or any of the elements of the cost or sale price of goods or any class or description of goods bought or sold in such trade or business, whether by wholesale or retail;

(d) require the provision and maintenance, at places at which goods are offered for sale by retail, of means whereby prospective purchasers of any of those goods may ascertain the weight or measurement;

(e) prescribe the manner in which goods are analyzed or tested under section 38;

(f) provide for fees, rates and other costs as may be required from time to time;

(g) provide for various forms for notices, reporting and other purposes as required under this Act;

(h) provide for further functions and powers of the Appeals Tribunal;

(i) exempt a transaction or consumer agreement under section 74(4);

(j) prescribe the time periods for a refund under section 78(9);

(k) exempt goods or prescribe the circumstances for displaying or selling goods under section 83(3);

(l) prescribe the manner and form for disclosure of environmental facts under section 84;

(m) prescribe categories of agreements to which section 92 applies and the specific wording to be included in such agreements;

(n) prescribe standards of consumer safety under section 132;

(o) prescribe promotional competition rules under section 170;

(p) prescribe matters required or permitted to be prescribed by this Act;

(q) provide for such matters as may be contemplated or necessary for giving full effect to this Act and for its administration or incidental to or consequential upon any provision of this Act.

(3) Nothing in subsection (2) is deemed to authorize the Minister to make any regulations in relation to any goods if the exportation, distribution, purchase, sale or price of the goods is or may be, regulated under or by virtue of the provisions of any other enactment.

(4) Regulations made under this section may create offences and may prescribe penalties for the offences on conviction to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding four years.

182. Repeal

The Consumer Affairs Act, Cap. 18.38, is hereby repealed.

SCHEDULE 1

(Section 2)

CARICOM MEMBER STATES

Antigua and Barbuda

Barbados

Belize

Commonwealth of Dominica

Cooperative Republic of Guyana

Federation of Saint Christopher and Nevis

Saint Lucia

Grenada

Haiti

Jamaica

Montserrat

Republic of Trinidad and Tobago

Saint Vincent and the Grenadines

Suriname

The Bahamas

SCHEDULE 2

Form for Complaint

(Section 21)

SCHEDULE 3

(Sections 9)

SUMMONS TO WITNESS

To: (name of person summoned and his or her calling and address, if known)

You are hereby summoned to appear before the Consumer Protection Board at (place) upon the day of at o’clock and to give evidence respecting (state the matter). (If the person summoned is to produce any documents, add):

You are required to bring with you (specify the papers, books, records and documents required).

Therefore, fail not at your peril.

Given under the hand of (Chairperson or his delegated member of the

Board) this [ ] day of [ ] 20

SCHEDULE 4

(Sections 2 and 43)

Offence Section Fixed Penalty

Loss or injury suffered 42(1) 25% of the value of the

By consumers due to defective goods or service

defective good sold or provided up to $10,000

services provided

Failure to observe

Consumer rights Part V $750

Non-compliance with

suppliers duties Part VI $750

Engaging in unfair trade

Practices Part VII $750

Failure to observe Part VIII $1500

consumer safety

requirements

Non-compliance with Part IX $2000

Recall of goods and

Services directions

Failure to observe the 170 $750

Promotions provisions

SCHEDULE 5

(Sections 43)

FIXED PENALTY NOTICE (TICKET)

SCHEDULE 5 OF THE CONSUMER PROTECTION ACT, 2023

Name of Business   Address        from/at  am/pmon the day ofyear    in circumstancesgiving me reasonable cause to believe that the offence of
was being or had been committed under Section/ Regulation
of the Consumer Protection Act/ Regulations Chapter ……………of the Laws of the FederationFixed Penalty Name and Rank of Officer ……………………………………………………………………………………………………Signature ………………………………………………………….PAYMENTIf within 14 business days from the date of this notice the fixed penalty is paid to the Clerkof the Magistrate’s Court District ” ” and person’s liability to conviction of the alleged offence shall be discharged and police will not prosecute. If not paid, the person shall appear at the Magistrate’s Court District ” “   at 9:00 amon       NOTE: IT IS AN OFFENCE FOR ANY UNAUTHORIZED PERSON TO INTERFERE WITH THIS NOTICE Serial NumberDate of issue

(back of ticket)

Schedule 5: The table outlines the Offences, Sections and Fixed Penalties

OffenceSectionFixed PenaltyDuties of Suppliers

Part VII83 – Product Labelling and trade descriptions85 – Disclosure of use, re-conditioned, re-built or re-made goods87 – Expiry date, etc. to appear outside packaged food products88 – Prohibition respecting selling expired goods90 – Information to consumer91 – Disclosure of price of goods or services92 – Warranties97 – Over-selling and over-booking99 – Sales record105 – Return of defective goods108 – Return of electrical goods109 – Suppliers offering repair services110 – Promotion of goods or services$750 applied to All sections EXCEPT Section 87 which is $1,000

Unfair Trade PracticesPart VIII117 – False, misleading or deceptive representation118 – Restrictive Trade119 – Unfair method, deceptive practice or misleading public122 – Unconscionable conduct125 – Dual Pricing$1,500 applied to all sections EXCEPT Section 125 which is $750Consumer SafetyPart IX133 – General consumer safety requirement136 – Contravention of consumer safety requirement138 – Imposition of permanent ban$2,000 applied to all sections“no refund” signs Part XIII171 – “no refund” signs
$750

……………………………..

Lanein K. Blanchette

Speaker

Passed by the National Assembly this day of , 2023.

……..………………………………….

Trevlyn Stapleton

Clerk of the National Assembly

The post Consumer Protection Bill 2023 first appeared on SKNIS.

Consumer Protection Bill 2023

Consumer Protection Bill 2023

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