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OFFENCES UNDER
TRADE DESCRIPTIONS
ACT 1972 AND PRICE
CONTROL ACT 1946
MINISTRY OF DOMESTIC TRADE AND CONSUMER AFFAIRS
PUTRAJAYA
INTRODUCTION
The MDTCA was established to promote
the development of domestic trade in
ethical manners and protect the interest of
all consumers.
o The Enforcement Division of the Ministry of
Domestic Trade and Consumer Affairs
established in 1974 has:
72 branch offices throughout the country,
2174 enforcement officers, and has set up
Several task forces to address trade and
consumer protection issues eg the Special Task
Force to Combat Counterfeit Products
The MDTCA is currently administering 20
consumer, trade related & IP legislations, 9 of
which are administered and enforced by The
Enforcement Division, MDTCA namely:
(i) Price Control Act 1946
(ii) Control of Supplies Act 1961
(iii) Hire Purchase Act 1967
(iv) Weights and Measures Act 1972
(v) Trade Descriptions Act 1972
(vi) Copyright Act 1987
(vii) Direct Sales Act 1993
(viii) Consumer Protection Act 1999
(ix) Optical Disc Act 2000
THE TRADE DESCRIPTIONS ACT
1972
This Act has offered protection to
consumers and legitimate traders for over
three decades in the country. It is an
extremely versatile piece of legislation
which has been used to tackle all manner
of different forms of unfair trading eg:
Distribution of counterfeit goods
misdescribing holiday packages
TRADE DESCRIPTIONS ACT 1972 – an
overview
WHAT DOES THE LAW REQUIRE?
Any descriptions of goods and services, given by
a person acting in the course of a trade or business, should be accurate and not misleading.
HOW CAN A TRADE DESCRIPTION BE GIVEN ?
A description can be given verbally, in writing, by illustration or by implication.
What are the offences under the Act (relating to
goods)?
The Act makes it an offence to:
Apply a false or misleading description to
goods; or [Sec. 3(1)(a)]
Supply or offer to supply goods to which a
false or misleading trade description is
applied. [Sec. 3(1)(b)]
MAIN ACT
WHAT IS “TRADE DESCRIPTION” ?
HALAL PROTONEMAS 999
MADE IN CHINA DILULUS OLEH 100 % PURE SILK
What descriptions of goods are deemed to be ‗trade descriptions‘ ?
A trade description is an indication, direct or indirect and by whatever means of any of the following matters with respect to any goods or parts of goods.
Thus the following matters are specifically included within the meaning of trade description:
Quantity or size.
Method of manufacture, production, processing or reconditioning
Person by whom manufactured, produced, processed or reconditioned,
Other history, including previous ownership or use
Composition
Fitness for purpose, strength, performance,
behaviour or accuracy
Any physical characteristics not included in the
preceding paragraphs,
Testing by any person and results thereof
Approval by any person or conformity with a type
approved by any person
Place or date of manufacture, production,
processing or reconditioning,
To be an offence the indication must be applied to the goods in question, whether in writing or by any means of an illustration, symbol, or other marking on the goods themselves, on containers, labels, show cards, in advertisements, etc, or in an oral statement.
What else is prohibited under the Act? – Definition
and Marking Orders
Powers are available under the 1972 Act by
which definitions of the words used to describe
their goods or services could be laid down.
Orders could also be made requiring goods to
be marked with or accompanied by information
necessary for consumers of the goods, or for
such information to appear in any advertisement
for the goods.
Where it appears to the Minister that it would be
of interest of persons to whom any goods are
supplied that any expressions (such as the
expression ―HALAL‖) used in relation to the
goods should be understood as having definite
meanings, the Minister may by order, assign
such meanings to those expressions when used
in the course of trade or business.
Trade Descriptions (Use of Expression ―Halal‖)
Order 1975
In this Order, when the expressions ―Halal‖, ― Di Tanggong Halal‖ or ―Makanan Islam‖ or any other expression is used in relation to food in any form whatsoever, indicating or likely to be understood as indicating that Muslims are permitted by their religion to consume such foods, it shall have the following meaning –
The food neither is nor consist of or contains any part or matter of an animal that a Muslim is prohibited by Hukum Syarak to consume or that has not been slaughtered in accordance with Hukum syarak.
It is free from anything considered Najis (impure) according to Hukum Syarak.
Processed or prepared with apparatus or equipment free
from things considered Najis.
In the course of preparation, processing or storage
(including transportation), has not been in contact with or
close proximity to any food that fails to comply the above
or is considered Najis.
Najis or impurity can be defined as any discharge from
human or animal orifices (including urine, excrement,
blood, vomit and pus), dead animals and including pork
and alcohol.
OFFENCES FOR THE MISUSE OF THE
EXPRESSION ―HALAL‖
Sec.3(1)(a) and Sec.3(1)(b) TDA 1972 Use of the word ―Halal‖ on food which is not
halal
Sec.15 TDA 1972 The use of ―Halal‖ logo purportedly issued by
any department for religious affairs like The Malaysian Dept of Islamic Dev/ State Dept of Islamic Religion (JAKIM/JAIN)
Sec. 15(1) TDA 1972
If any person in the course of any trade or business gives whatever means any false indication direct or indirect that any goods or services supplied by him or any methods adopted by him are or are of a kind supplied to or approved by any person including any government or government department or agency or any international body or agency whether in Malaysia or abroad, he shall be guilty of an offence.
Powers Conferred
Wide investigation powers
enter business premises without warrant
requiring traders to produce related books/documents
inspect and seize goods and documents
arrest without warrant under certain circumstances
HOW THE LAW IS ENFORCED
Monitoring by the Enforcement Division
Joint-inspections with other agencies like
ST, SIRIM, JAKIM or JAIN
Seizure of goods suspected of contravening
the laws
Analysis of the items by the Chemistry
Department.
Offer of compounds / prosecution in court
Inspection
Inspection activities are classified into 2categories:
Proactive - physical inspection andmonitoring is being carried out on businesspremises to identify and act effectively onmisappropriation and infringement ofprovisions of the various laws enforced by theDivision.
Reactive – inspections based oncomplaints. All complaints would beacted upon and the result madeknown to the complainant within 21days.
Documents Needed
Letter of complaint;
Surveillence report;
Trademark and/or TDO;
Sample of the products.
JOHNSON & JOHNSON
―Tandaniaga "JOHNSON'S" sebagaimana yang diperihalkan dengan lebih jelas dan khususnya dalam Jadual yang dilampirkan dengan ini dan/atau mana tandaniaga lain yang serupa dalam bunyinya, yang boleh dilancungkan atau mengelirukan, yang ditampalkan, dilekatkan atau kelihatan dalam apa-apa bentuk material di atas barang-barang berikut iaitu kain lampin bayi dan/atau barang-barang yang berkaitan atau perihalnya yang serupa (barang-barang tersebut) yang tidak dikilangkan, diedarkan, dijual, ditawarkan untuk penjualan atau diberikuasa untuk mengendalikannya oleh pemohon atau pengilang berlesen, pengedar atau penjual mereka akan dianggap sebagai suatu perihal dagang palsu mengikut makna Akta Perihal Dagangan 1972.‖
―Akhir kata, saya suka menyebut tentang rungutan peguam pemohon bahawa, jika tidak ada perintah perihal dagangan, Bahagian Penguatkuasaan Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna enggan mengambil tindakan penguatkuasaan dan pendakwaan terhadap kes-kes perihal dagangan palsu yang melibatkan cap dagangan. Rungutan itu dibuat sebagai salah satu sebab mengapa perlunya dibuat perintah perihal dagangan dalam kes ini. Sebagai jawapan, saya hanya perlu berkata bahawa pendapat saya dalam penghakiman ini tentang kedudukan undang-undang dalam hal ini bererti bahawa Bahagian itu boleh dan wajib menguatkuasakan terus Akta Perihal Dagangan 1972 dalam kes-kes yang melibatkan cap-cap dagangan yang identikal -iaitu kes barang tiruan - tanpa tuanpunya cap dagangan yang berkenaan perlu datang ke Mahkamah terlebih dahulu untuk mendapatkan perintah perihal dagangan, yang mana mungkin melibatkan proses yang akan memakan belanja dan masa yang tidak sedikit‖. Judge Abdul Aziz bin Mohamad
Who can commit an offence?
Any person acting in the course of a trade or
business can be guilty of an offence under the
Act. This would include Directors and Managers.
What are the penalties?
Failure to comply with the Trade Descriptions
Act 1972 is a criminal offence. The maximum
penalty on conviction at a Sessions Court is a
fine of RM 100,000 and/or three years
imprisonment for an individual
For Body Corporate – a maximum fine of
RM250,000.00
PRICE CONTROL ACT 1946
Enforced since 1st October 1946.
Objective –to provide for the control of
prices.
General Powers of Price Controller
Declare any class of goods as price
controlled
Prohibit, restrict or control the export of
any price controlled goods
Prescribe marks or labels to be displayed
by retailers, wholesalers , importers,
manufactures and producers relating to
price controlled goods
Offences
Selling above fixed prices
Selling price-controlled goods without a licence
Not displaying licence and list of prices of price controlled goods
Refusal to sell price-controlled goods
Imposing illegal conditions other than requiring immediate payment
Offences…
Removal of price-control goods from
business premises
Storage of price controlled goods in
unlicensed premises
Regulations/ Orders
Price Control (Indication Of Price By Retailers)
Order 1993 {Price Control (Indication Of Price
By Retailers) Order 1977}
1 June 1993
Every Retailer of goods shall affix labels, tags or
marks on the goods or containers of such goods
which are displayed whether for sale or as
samples of goods for sale indicating the cash
price per unit or per unit weight or measure of
such goods.
Regulations/Orders
Particulars shall be in Bahasa Malaysia,
and where necessary translation in the
language of the trader;
Labels and tags must be in such size and
colour- conspicuous;
Price in Malaysian Ringgit;
Regulations/Order
Price Control (Labelling By Manufacturers,
Importers, Producers or Wholesalers)
Order 1980:-
1st July 1980;
To provide essential particulars on pre-
packed goods;
Allows traceability of the source of the
goods;
Price Control (Labelling by Manufacturers,
Importers, Producers or Wholesalers) Order
1980
No manufacturer, importer, producer or wholesaler shall sell any pre-packed goods unless there is affixed to such goods, or its wrapper, bag or container, a label or mark containing the following particulars namely—
(a) the appropriate designation of the goods;
(b) where applicable the minimum weight, quantity, amount or capacity of the goods in the wrapper, bag or container as may be appropriate, expressed in terms of unit, net weight or measure solely in metric and in the case of imported goods, either solely in metric or in both metric and imperial units;
(c) the name and address of the manufacturer, importer, producer or wholesaler, as the case maybe, of the goods, and in the case of imported goods, the name of the country where the goods was manufactured;
(d) & (e)…
The label shall be legible and in clear words and such size and colour so as to be sufficiently conspicuous to the intended buyer and shall in the case of goods manufactured or produced in Malaysia be solely in Bahasa Malaysia or in Bahasa Malaysia and any other language; and in the case of imported goods be in Bahasa Malaysia or English;
Under this Order:
―appropriate designation‘ means a name or description being a specific name or description, which shall indicate to any person intending to purchase the true nature of the goods to which it is applied;
―goods‖ means ―goods‖ as defined under section 2(1) of the Price Control Act 1946;
―importer‖ includes any persons who, whether as owner, consignee, agents or broker is in possession of, or is entitled to the custody or control of the imported goods; ―manufacturer‖ means any person who manufactures and includes any person who repacks any goods for the purpose of sale;
―pre-packed‖ means packed or made up in advance ready for sale in a wrapper, bag or container;
What are the penalties?
Failure to comply with the Price Control
(Labelling by Manufacturers, Importers,
Producers or Wholesalers) Order 1990 is a
criminal offence under the Price Control Act
1946. The maximum penalty on conviction at a
Magistrate Court for an individual is a fine of RM
15,000 and/or two years imprisonment and RM
25,000 for offences committed by a body
corporate.
THANK YOU
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