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.

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