Consumer rights

Situation : 1. Product information in terms of manufacturing month, year and manufacturer name, importer name etc is always printed in the box of a new mobile phone. 2. I was not given the box and at the time of purchase I did not realize the importance. Now my phone is defective. I want to know the manufacturing month, year to understand how old my phone is. The authorized dealer of the company now tells me they do not know the manufacturing month, year for this new phone and that it is their policy to give the phone to the customer and send the box back to the company head office in India and shockingly the head office company in India too agrees this is their policy in written communication to me. I understand, very strange but it has indeed happened. The guidance I request is under which Act/Law is the company which has its registered office abroad and head office in India is in violation of not providing rudimentary details like manufacturing month, year, importer name, manufacturer name etc to consumer. Does this come under Unfair Trade Practice. If yes, which specific section, page number can you refer to me for me to understand more in detail. Thank you in advance.
Related Topics : Civil Litigation
Lawyers answer this question

Advocate Justice Kishan Dutt Kalaskar

Bangalore 
For More Details Contact On +91 7769012300.
A:

Legal Metrology (Packaged Commodities) Rules, 2011.

The Legal Metrology Act, 2009 came into effect from the 1st of April, 2011, replacing the Weights and Measures Act. The Act was passed with the purpose of establishing and enforcing standards of weights and measures or aspects incidental to the same.

Under the act, there are various rules, but a crucial arm of the act is the Packaged Commodities Rules, i.e. Legal Metrology (Packaged Commodities) Rules, 2011 (hereinafter referred to as “Rules”).

The Department of Legal Metrology falls under the Department of Consumer Affairs, and is therefore concerned with fair and honest practices in relation to all aspect of trade. The Rules deal with goods that are packaged and provide inter alia how declarations are to be made and what declarations are to be contained in a packaged commodity that is meant to be for sale.

Why are Declarations required in Packaged Commodities

It may be questioned why declarations are required in the first place, after all, when we buy vegetables or meat from sellers, or groceries from vendors that are not packed, they are not mandated to provide any declarations with respect to the same.

The probable answer is because when we buy the things in an unpacked form, we know who we are buying it from, or the identity of the seller, on occasions we even see it being manufactured in front of us (for example flour), however when we buy goods that are packaged we do not know where they are from or how fresh they are or when they expire. Hence it can be said that the purpose of the Rules is to ensure that the end consumer gets clarity and all relevant information when he buys a product that is in packaged form.

Are all Packaged Commodities covered under the Rules

Yes and No. While certain provisions are applicable for all packaged commodities there are certain rules that do not apply to certain kinds of commodities. Chapter II of the Rules, for example, deal with packages that are meant for retail sale, these provisions would not be applicable to certain kind of commodities.

Beyond the obvious, these rules would not be applicable for products meant for institutional or industrial consumers, i.e. those institutions who directly purchase from the manufacturer for use by the said institution OR consumers who buy the products directly from the manufacturer for use in that industry.

For example, a hospital buying packaged paint directly from paint company would amount to an institutional consumer, and the products would not require the declarations that otherwise are required had the products been sold in retail market.

Similarly, an automobile company that buys packaged paint and consumes it for the purposes of painting the vehicles would amount to an industrial consumer and the packaged paint would similarly not require the declarations otherwise required.

Further, commodities which contain quantity of more than 25 kg or 25 litres (50 respectively in case cement and fertilizers) are exempted from the specific requirements of retail packages.

Additionally, the Rules do not apply to certain packages even if they satisfy all other criteria if: [1]

  1. The package is sold by weight or measure and amounts to less than 10 ml or 10 gm (provided the product is not tobacco); or
  2. Package contains fast food items and is packed by hotels/restaurant/similar body; or
  3. Contains scheduled drugs and non scheduled drugs covered by the Drugs (Price Control) Order, 1995; or
  4. Agricultural farm produce in packages above 50 kgs; or
  5. Thread which is sold in the form of coil to handloom weavers.

Which Declarations are Mandated under the Rules

Rule 6 of the Rules dictate the declarations that must be present in every packaging. They include: –

(a) The name and address of the manufacturer/importer/packer, as may be applicable. Note that if the manufacturer and packer are separate entities then their names are to be mentioned separately. Also it is to be noted that address to be mentioned is registered office address (this is a departure from the Weights and Measurements Act as well as the earlier iteration of the rules – this clarification and amendment came into being vide GSR 385 – E, dated 14th May, 2015, with effect from 1st January, 2016). It is to be noted that this declaration is waived if the product is or contains a food article, instead the specific provision under the Food Safety and Standards Act, 2006 will be applicable.

(b) Generic name of the commodity being sold.

(c) Price at which the product is being sold, inclusive of all taxes. Note that there is a specified format at which the same is to be declared, viz. “Maximum Retail Price ……………… Inclusive of all taxes” or “MRP ……………… Inclusive of all taxes”. The symbol of the currency is to be mentioned, i.e. the Rupee symbol, or Rs. or INR. Price is to be declared up to two decimal places.

(d) Date of manufacture/packaging/import, as the case may be, viz. the month and year. If the date of packaging and manufacture differ, separate declarations are to be given.

(e) Quantity of the commodity (explained in further detail later on)

(f) Name, address, telephone number, e-mail address of the person or office who can be contacted for consumer grievances.

Are these the only Declarations

Not necessarily. Different acts may have other requirements, for example the Food Safety and Standards Act requires certain declarations, but these are all in addition to the basic and fundamental declarations under the Rules.

How and Where are these Declarations to be Made

Just declaring the above mentioned mandatory declarations aren’t sufficient, they have to be made in a particular manner.

The declarations are to appear on the principal display panel of the packaged commodity, and what constitutes the principal display panel is determined as follows:

  1. In case the product is rectangular in shape, then one side of the package can be considered to be the principal display panel side – (area of the display panel being the surface area of that particular side).
  2. In case the product is pipe shaped or nearly cylindrical, 40% of the surface area.
  3. In other cases, 40% of the total surface area of the package. [2]

However, it is to be kept in mind that for the purpose of calculating principal display panel area, the top, bottom, flange at the top and bottom of cans, and shoulders and neck of bottle and jars shall not be included. [3]

Also, the height of fonts is an important aspect of the declarations.

As the purpose of the Rules is to ensure that consumers are made aware of the nature of the goods – specific provisions are in place to ensure that the declarations are prominent and legible. [4] As these are vague and subjective terms, the font height and size are important aspects to ensure that the packaging declarations are made in a proper manner.

Rule 7 (3) provides that the height of any declaration should not be less than 1mm and if the nature of declaration is such that it may be embossed or perforated or molded or blown or formed, then the height should not be less than 2mm.

There is a separate provision for height of ‘numerals’ in the declarations as denoted by the below mentioned tables.

When Quantity is declared in terms of Weight/Volume

Net Quantity

Minimum Height in mm

Normal Case

When molded, perforated, embossed, formed, blown

<200 g / ml

1

2

>200 g /  ml < 500 g / ml

2

4

>500 g / ml

4

6

When Quantity is declared in terms of Length/Area/Number – area of Principal Display Panel

Net Quantity

Minimum Height in mm

Normal Case

When molded, perforated, embossed, formed, blown

< 100 cm2

1

2

> 100cm2< 500 cm2

2

4

>500 cm2<2500 cm2

4

6

>2500 cm2

6

6

As we can see from the tables above, while the height of the letters in a declaration are to be at least 1mm, for numerals it ranges from 1mm to 6mm.

While it may appear obvious, it is important that we understand what a numeral is because it has an important impact on the manner of declarations, including practicality [5] and aesthetic value of the artwork.

The meaning of numeral has not been defined either in the Act of 2009 or in Rules of 2011. Meaning of the word numeral therefore will have to be looked into Dictionary. Meaning of Numeral has been given in Online Oxford English Dictionary as below:

‘A figure, word or group of figures denoting a number’ [6].

Therefore a numeral needs to be a number. Neither the Act of 2009 nor the Rules of  2011 have defined ‘number’. Once again therefore one has to look into Dictionary.

Meaning of number has been given in Online Oxford English Dictionary as below :

‘An arithmetical value expressed by word, symbol or figure, representing a particular quantity.’ [7]

From the above it is clear that ‘numeral’ is a ‘number’ having an arithmetical value and a number not having any arithmetical value is not a numeral.

Therefore postal pin codes, telephone numbers, Road Nos., City Survey Nos. etc.  are not numerals. Such numbers do not represent any value. For example, performing functions of addition, deletion, subtraction or division of quantity expressed in numbers or price in numbers is possible and brings about an arithmetical value. However, the said functions cannot be performed on pin codes are telephone numbers. Such numbers do not have any arithmetical value.

What are the Numerals in the Mandatory Declarations

It is the author’s view that the declarations amongst the six mandatory declarations that should be considered as numerals are:

  1. Quantity related declarations,
  2. Price and
  3. Month and year of manufacturing/packing/importing (only when expressed in numbers).

These are the only fields on which arithmetical operations can be performed; as illustrated above.

Special Requirement while Declaring Quantity

The Rules specify that the space surrounding the quantity declaration should be devoid of printed information at least to the following extent:

  1. To the top and bottom by a space equal to the height of the numeral in the quantity declaration.
  2. To the left and right by a space equal to double the height of the numeral in the quantity declaration. [8]

Can Labels be Used to Make the Declarations

Not all manufacturers and traders are equipped to make the declarations on the artwork of the packaging, the same requires substantial investment and printing costs which a manufacturer or packer may understandably want to avoid; comparatively the costs associated with sticking labels on the product are substantially lower and require lesser investment – therefore labelling on the product is allowed for the purpose of making the declarations. However, this is done through a negative right.

The provisions state that it is not permissible to apply individual stickers[9] on a package for either altering or making declarations. While this provision prima facie disallows a party from making individual declarations through labels – as a corollary it also permits making all mandatory declarations through a single label.

What about the Declarations the Values of which Regularly Vary

Changing an artwork is a time taking and expensive affair, for declarations such as date of manufacture which is bound to vary frequently (every month) it is impractical to make the entire declarations through artwork.

While the act is silent about the aspects of this, the general practice across industries (which prefer declarations through artwork as opposed to labels) is that barring date of manufacture and maximum retail price – all declarations (viz. generic name of product, name and address of manufacturer/packer/importer, quantity, customer care declarations) are made on the artwork and a blank space is left for declaring the MRP and the Date of Manufacture/Packed Date/Date of Import.

These details are then imprinted on the artwork through a separate inkjet, dot-matrix, or any other kind of printer. As the rest of the declarations for a particular artwork will always remain constant, this is the preferred way to make declarations.

Can Stamps be used to Make the Declarations

There is nothing in the provisions that specifically prohibit the use of stamping to make declarations. But it is of interest to note that previously a proviso to Rule 6 (1) (d) [10] stated that a manufacturer could indicate the month and year using a rubber stamp. This proviso has since been omitted [11] for unknown reasons.

Rule 9 (1) (b) however states that numerals of the retail sale price and net quantity declaration ought to be painted, inscribed, or printed. This could be an indication that stamping is disallowed, at least with respect to the abovementioned declarations.

Units to be Used in the Declarations

All units in the packaging material should follow International System of Units (S.I) system. For items sold by number, the qualifying symbol used should be “N” or “U”.

For depicting length, if the quantity is less than one meter, it is to be depicted in centimeter. Else, meter.

For depicting mass, if the quantity is less than one kilogram, it is to be depicted in grams. Else, kilogram.

For depicting area, if the quantity is less than one square meter, it is to be depicted in square decimeter. Else, square meter.

For depicting volume, if the quantity is less than one litre/one cubic meter/one cubic decimeter, it is to be depicted in millilitre/cubic centimeter/cubic centimeter respectively. Else, litre/cubic meter respectively. [12]

A schedule to the Rules specifies certain products (i.e. their generic name) and in terms of what their quantity is to be declared. For example, curd is to be expressed in terms of weight, but ice cream and other similar frozen products are to be expressed in terms of weight OR volume. The schedule however only specifies twenty six items, and Rule 12 states how other products may be declared, viz.

  1. In terms of weight – if the product is solid, semi-solid, viscous or a mixture of liquid and solid.
  2. In terms of volume – if the product is sold by cubic measure or is liquid.
  3. In terms of number – if the product is sold by numbers.
  4. In terms of area – if the product is sold by area measure.
  5. In terms of length – if the product is sold by linear measure.

Dimensions of the product may be additionally required to be mentioned in case the same is a pertinent factor for the product in question.

The Second Schedule to the Act also specifies certain commodities (i.e. their generic name) and their standard pack sizes, such mentioned products can only be sold in the specified quantities[13], for example Mineral Water and Drinking Water can only be sold in quantities of 100 ml, 150 ml, 200 ml, 250 ml, 300 ml, 500 ml, 750 ml, 1 litre, 1.5 litres, 2 litres, 3 litres, 4 litres, 5 litres, and subsequently in multiples of 5 litres.

For products that do not fall under the ambit of this list, there is no such restriction with respect to pack sizes.

Combination Packs

We frequently see one product containing a number of components which are packed in two or more units for sale as a single commodity (for example razor handle and razor being sold as a kit). In such cases, the declarations required should appear on the main package and such package should also contain information about the other accompanying packages.

From the wordings, it is clear that main package does not amount to a single package in which each of such components are contained, but refers to the single most important component of the package.

It is important to understand what would be construed as the ‘main package’ in such instances, for the aforesaid example it is clear that the razor handle is the main package but for every possible scenario it may not be as lucid.

Therefore, the provision also gives the option of giving independent declaration for all of the components and intimation to that effect should be reflected on the main package. But this is a potential grey area that the law should address.

Wholesale Packages

The Rules define ‘Wholesale Packages’ to mean packages

  1. Containing a number of retail packages, where the said package is meant for sale, distribution, or delivery to an intermediary and is not for sale directly to a single consumer, or
  2. Sold by bulk to an intermediary for further selling, distribution, or delivery to customer in small quantities, or
  3. That contain 10 or more retail packages, provided that the retail packages are labelled as mandated under the Rules.

Wholesale packages do not require all of the declarations as provided under Rule 6, but it is mandatory that they state:

  1. Generic name of the product
  2. Total number of retail packages within such wholesale package or quantity declaration, as the case may be, and
  3. Name and address of the manufacturer/importer/packer.

Miscellaneous Provisions

If a product has an outside container or wrapper, the said container/wrapper should also have the relevant declarations. However, this requirement is waived if the container/wrapper is transparent and the declarations are easily readable through such external packaging. [14]

If a product is likely to undergo variations in quantity that are significant owing to environmental or other factors can be qualified by the words “when packed” in its quantity declaration. This allowance is presently restricted to soaps, lotions, creams (other than cream of milk), and camphor. [15]

When stating quantity in terms of weight, the weight of packaging and/or any other object apart from the product is to be excluded. [16]

Additional Information and Penalty for Offences

The Rules additionally provide for registration of manufacturers, packers and importers with the Director of Legal Metrology or State Controller of Legal Metrology which is a mandatory requirement.[17] Penalty for non registration is a fine of Rs. 4000/-[18].

Penalty for quoting or publishing non-standard units[19] is a fine of Rs. 2000/- (if compounded by retailer/wholesaler/dealer) or Rs. 4000/- (if compounded by manufacturer/packer/importer).

For manufacturing, packing, importing, selling, or offering to do any of the above with respect to products which do not adhere to the Rules pertaining to the declarations –  the penalty amount may extend to Rs. 25,000 for the first offence. For the second offence, the fine may extend to Rs. 50,000 and for any subsequent offence the fine would not be less than Rs. 50,000 and may extend to Rs. 100,000 or imprisonment which may extend upto one year, or both. [20]

For manufacturing, packing, or importing with error in net quantity – for the first offence, no less than Rs. 10,000 fine but which may extend upto Rs. 50,000. For second and subsequent offences, the fine may extend upto Rs. 100,000 or with imprisonment for upto one year, or both. [21]

Selling products for more than the MRP declared is subject to a fine of Rs. 2000 for retailers or wholesale dealer, and Rs. 5000 for manufacturer or importer. [22]

For any other offence under the Rules, the penalty amount payable shall be Rs. 2000. [23]

The Act also provides for appealing before the relevant state Controller against the findings/order of the Inspector.

Practical Challenges & Conclusion

In spite of the noble intentions, there are certain stumbling blocks being faced in implementation of the Rules. Lack of manpower to check and enforce the provisions of the Rules is a continuous issue being faced by most state governments. [24]

Further, while the penal provisions lay out consequences of offences and subsequent offences – and there is clearly no intention of restricting the offences to a particular jurisdiction, this inadvertently occurs.

Ideally an offence committed in any state should count as an offence and another offence committed in another state should amount to a subsequent offence; however, owing to difficulties in coordination between different state bodies, offences are tracked independently by each state, so an offence, even if committed by an entity for the nth time but for the first time in a particular state – the same amounts to a first offence.

With the present Government’s increased encouragement of digitization perhaps the day is not far off that a central repository would be kept where offences are tracked irrespective of where they occur.

Lastly, the Legal Metrology Inspectors who carry out checks and seizures are often not very familiar with the Rules themselves, and are not aware of the latest case laws in the matter. This results into unnecessary complications and dragged out proceedings which do not serve the interests of any party concerned. Training programs should be conducted from time to time for knowledge updating of the very people who practically monitor and enforce the law in this regard.

References

Statutes

The Legal Metrology Act, 2009

The Legal Metrology (Packaged Commodities) Rules, 2011

 

78 user found this answer helpful

Disclaimer : This answer is based on information given by you hence, It is just opinion of Lawyer. For specific answer you have to give details and facts and choose the Lawyer of your choice.

Lawyers: To answer this question, please Sign In to your account or wait for admin approval.

Most Viewed Lawyers