Loi sur les pratiques commerciales loyales de 1986 (mise à jour le 1er mai 2011), Nouvelle-Zélande

Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

Ageneraloutlineofthesechangesissetoutinthenotesattheendofthisreprint,togetherwith other explanatory material about this reprint.

This Act is administered by the Ministry of Consumer Affairs.

Part 1 Misleading and deceptive conduct, false representations, and unfair practices

Misleading and deceptive conduct

9 Misleading and deceptive conduct generally 11 10 Misleading conduct in relation to goods 11 11 Misleading conduct in relation to services 11 12 Misleading conduct in relation to employment 11

False representations

13 False or misleading representations 12 14 False representations and other misleading conduct in 13 relation to land 15 Limited application of sections 9 to 14 to news media 14 16 Certain conduct in relation to trade marks prohibited 15

Unfair practices

17 Offering gifts and prizes 16 18 Trading stamp schemes prohibited[Repealed] 17 19 Bait advertising 17 20 Referral selling 18 21 Demanding or accepting payment without intending to 18 supply as ordered 22 Misleading representations about certain business 19 activities 23 Harassment and coercion 19 24 Pyramid selling schemes 19 25 Provisions of this Part not limited by reference to other 20 provisions of this Part 26 Importation of goods bearing false trade description 21

Part 2 Consumer information

27 Consumer information standards 21 28 Compliance with consumer information standards 23

Part 3 Product safety

29 Product safety standards 24 30 Compliance with product safety standards 25 31 Unsafe goods 26 32 Compulsory product recall 26 33 Importation of certain goods prohibited 27

Part 4 Safety of services

34 Meaning of services 28 35 Safety standards in respect of services 28 36 Compliance with services safety standards 29

Part 5 Enforcement and remedies

Jurisdiction of courts

37 Jurisdiction of High Court 29 38 Jurisdiction of District Courts 30 39 Jurisdiction of Disputes Tribunals 30

Offences

40 Contraventions of provisions of Part 1, Part 2, Part 3, and 30 Part 4 an offence 40A Additional penalty for contravention of section 24 31 involving commercial gain

Civil proceedings

41 Injunctions may be granted by court for contravention of 32 Part 1, Part 2, Part 3, and Part 4 42 Order to disclose information or publish advertisement 33 43 Other orders 34 44 Defences 38 45 Conduct by servants or agents 40 46 Finding in proceedings to be evidence 41

Part 6 Miscellaneous provisions

47 Power to search 41 47A Powers conferred by warrant 42 47B Warrant to be produced 43 47C Other duties of person who executes a warrant 43 47D Duty to assist 44 47E Power to inspect documents and goods 45 47F Offence 45 47G Commission may require person to supply information 45 or documents 47H Notices 46 47I Service of notices 46 47J Offence to contravene section 47G 47 48 Proceedings privileged 48

An Act to prohibit certain conduct and practices in trade, to provide for the disclosure of consumer information relating to the supply of goods and services and to promote product safety and also to repeal the Consumer Information Act 1969 and certain other enactments

1 Short Title and commencement

(1)

This Act may be cited as the Fair Trading Act 1986.

(2)

Except as provided in section 49(3), this Act shall come into force on 1 March 1987.

2 Interpretation

(1) In this Act, unless the context otherwise requires,— acquire,—

(a)

inrelationtogoods,includesobtainbywayofgift,purchase, or exchange; and also includes take on lease, hire, or hire purchase:

(b)

in relation to services, includes accept:

(c)

in relation to interests in land, includes obtain by way ofgift,purchase,exchange,leaseorlicenceand acquisition has a corresponding meaning

advertisementmeansanyformofcommunicationmadetothe public or a section of the public for the purpose of promoting

the supply of goods or services or the sale or granting of an interest in land business means any undertaking—

(a)

thatiscarriedonwhetherforgainorrewardornot;or

(b)

in the course of which—

(i)

goods or services are acquired or supplied; or

(ii)

any interest in land is acquired or disposed of—

whether free of charge or not Commission means the Commerce Commission established by section 8 of the Commerce Act 1986

court means the High Court of New Zealand credit instrument means any agreement (whether in writing

or not) acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times document means a document in any form whether signed or

initialled or otherwise authenticated by its maker or not; and includes—

(a)

any writing on any material:

(b)

anyinformationrecordedorstoredbymeansofanytape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:

(c)

any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(d)

any book, map, plan, graph, or drawing:

(e)

any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced

goods—

(a)

means personal property of every kind (whether tangible or intangible); and

(b)

includes—

(i)

ships, aircraft, and vehicles:

(ii)

animals, including fish:

(iii) minerals, trees, and crops, whether on, under, or attached to land or not: (iv) gas and electricity:

(v)

to avoid doubt, water and computer software local authority includes every local authority andevery pub

licbodyorotherauthoritycreatedbyorpursuanttoanypublic Act or local Act Minister means the Minister of Consumer Affairs official standard means—

(a)

aNewZealandStandardwithinthemeaningof section 2 of the Standards Act 1988; or

(b)

astandardspecificationprescribedbyabody,organisation, or association having or performing similar functionstothoseoftheStandardsCouncilwithinthemean ing of section 2 of the Standards Act 1988

person includes a local authority, and any association of per

sons whether incorporated or not place includesanypremises,building,aircraft,ship,carriage, vehicle, box, or receptacle

priceincludesvaluableconsiderationinanyform,whetherdirect or indirect; and includes any consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing

servicesincludesanyrights(includingrightsinrelationto,and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred and, without limiting the generality of the foregoing, also includes the rights, benefits, privileges, or facilities that are or are tobeprovided, granted, orconferred under any ofthefollowing classes of contract:

(a)

a contract for, or in relation to,—

(i)

the performance of work (including work of a professionalnature),whetherwithorwithoutthe supply of goods; or

(ii)

theprovisionof,ortheuseorenjoymentoffacilitiesfor,accommodation,amusement,thecareof persons or animals or things, entertainment, instruction, parking, or recreation; or

(iii) theconferringofrights,benefits,orprivilegesfor which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction: (iv) to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water:

(b)

acontractofinsurance,includinglifeassurance,andlife reassurance:

(c)

a contract between a bank and a customer of the bank:

(d)

anycontractfor,orinrelationto,thelendingofmoney orgrantingofcredit,orthemakingofarrangementsfor thelendingofmoneyorgrantingofcredit,orthebuying ordiscounting of a creditinstrument,orthe acceptance of deposits;—

but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service

supply—

(a)

in relation to goods, includes supply (or resupply) by wayofgift,sale,exchange,lease,hire,orhirepurchase; and

(b)

in relation to services, includes provide, grant, or con

fer;—

and supply as a noun, supplied, and supplier have corres

ponding meanings

trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supplyoracquisitionofgoodsorservicesortothedisposition or acquisition of any interest in land.

(2)

InthisAct,areferencetoengaginginconductshallbereadas a reference to doing or refusing to do anact, andincludes,—

(a)

omitting to do an act; or

(b)

makingitknownthatanactwillor,asthecasemaybe, will not be done.

(3)

In this Act—

(a)

areferencetotheacquisitionofgoodsincludesareference to the acquisition of property in, or rights in relation to, goods, in pursuance of a supply of the goods:

(b)

areferencetothesupplyoracquisitionofgoodsorservices includes a reference to agreeing to supply or acquire goods or services:

(c)

a reference to the supply or acquisition of goods includesareferencetothesupplyoracquisitionofgoods together with other property or services or both:

(d)

a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services or both:

(e)

a reference to the resupply of goods acquired from a person includes a reference to—

(i)

asupplyofgoodstoanotherpersoninanaltered form or condition; and

(ii)

a supply to another person of other goods in which the goods have been incorporated.

Section2(1)Commission : amended,on25January2005,bysection200ofthe Crown Entities Act 2004 (2004 No 115).

Section 2(1) goods : substituted, on 8 July 2003, by section 3(1) of the Fair Trading Amendment Act (No 2) 2003 (2003 No 34).

Section 2(1) officer of the Commission: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 2(1) official standard : inserted, on 28 July 1997, by section 2 of the Fair Trading Amendment Act 1997 (1997 No 43).

Section 2(1) place: inserted, on 1 July 1990, by section 2 of the Fair Trading Amendment Act 1990 (1990 No 42).

Section2(1) services paragraph (a)(iv): added, on 8 July 2003,by section 3(2) of the Fair Trading Amendment Act (No 2) 2003 (2003 No 34).

3 Application of Act to conduct outside New Zealand

(1)

This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct relates to the supply of goods or services, or the granting of interests in land, within New Zealand.

(2)

See section 51 for the application of this Act in relation to an international trade instrument. Section 3(2): added, on 1 October 2008, by section 5 of the Fair Trading

Amendment Act 2008 (2008 No 52).

4 Application of Act to the Crown

(1)

Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.

(2)

The Crown shall not be liable to be prosecuted for an offence against this Act but in any case where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the persondirectlyaffectedbythecontraventionmayapplytothe court for a declaration that the Crown has contravened that provision; and, if the court is satisfied beyond a reasonable doubt that the Crown has contravened that provision, it may make a declaration accordingly. Compare: 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974

s 2A (Aust)

5 Application of Act to Crown corporations

(1)

ThisActappliestoeverybodycorporatethatisaninstrument of the Crown in respect of the Government of New Zealand engaged in trade.

(2)

Notwithstanding any enactment or rule of law, proceedings under Part5 maybebroughtagainstabodycorporatereferred to in subsection (1). Compare: 1975 No 113 s 20A; 1979 No 140 s 11

5A No liability under Act if not liable under Securities Act 1978 or Securities Markets Act 1988

A court hearing a proceeding brought against a person under this Act must not find that person liable for conduct—

(a)

thatisregulatedbythe SecuritiesAct1978 ifthatperson would not be liable for that conduct under that Act:

(b)

that is regulated by the Securities Markets Act 1988 if that person would not be liable for that conduct under that Act.

Section 5A: inserted, on 29 February 2008, by section 4 of the Fair Trading Amendment Act 2006 (2006 No 49).

13 False or misleading representations

No person shall, in trade, in connection with the supply or possiblesupplyofgoodsorservicesorwiththepromotionby any means of the supply or use of goods or services,—

(a)

makeafalseormisleadingrepresentationthatgoodsare of a particular kind, standard, quality, grade, quantity, composition, style, or model, or have had a particular history or particular previous use; or

(b)

make a false or misleading representation that services areofaparticularkind,standard,quality,orquantity,or thattheyaresuppliedbyanyparticularpersonorbyany person of a particular trade, qualification, or skill; or

(c)

makeafalseormisleadingrepresentationthataparticular person has agreed to acquire goods or services; or

(d)

makeafalseormisleadingrepresentationthatgoodsare new, or that they are reconditioned, or that they were manufactured,produced,processed,orreconditionedat a particular time; or

(e)

makeafalseormisleadingrepresentationthatgoodsor services have any sponsorship, approval, endorsement, performancecharacteristics,accessories,uses,orbenefits; or

(f)

makeafalseormisleadingrepresentationthataperson has any sponsorship, approval, endorsement, or affiliation; or

(g)

make a false or misleading representation with respect to the price of any goods or services; or

(h)

make a false or misleading representation concerning the need for any goods or services; or

(i)

make a false or misleading representation concerning theexistence,exclusion,oreffectofanycondition,warranty, guarantee, right, or remedy; or

(j)

make a false or misleading representation concerning

the place of origin of goods. Compare: Trade Practices Act 1974 s 53 (Aust) Section 13 heading: amended, on 15 November 2000, by section 3(b) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(a): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(b): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(c): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(d): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(e): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

Section 13(f): amended, on 15 November 2000, by section 3(a) of the Fair Trading Amendment Act 2000 (2000 No 64).

14 False representations and other misleading conduct in relation to land

(1)

Nopersonshall,intrade,inconnectionwiththesaleorgrantor possiblesaleorgrantofaninterestinlandorwiththepromotionbyanymeansofthesaleorgrantofaninterestinland,—

(a)

makeafalseormisleadingrepresentationthataperson has any sponsorship, approval, endorsement, or affiliation; or

(b)

make a false or misleading representation concerning the nature of the interest in the land, the price payable forthe land,the location of theland, thecharacteristics oftheland,theusetowhichthelandiscapableofbeing putormaylawfullybeput,ortheexistenceoravailability of facilities associated with the land.

(2)

Nopersonshallusephysicalforce,harassment,orcoercionin connection with the sale or grant or possible sale or grant of an interest in land, or the payment for an interest in land.

(3)

In this section interest, in relation to land, means a legal or equitable estate or interest in the land; and includes—

(a)

arightofoccupancyoftheland,orofabuildingorpart ofabuildingerectedontheland,arisingbyvirtueofthe holdingofshares,orbyvirtueofacontracttopurchase shares, in a company that owns the landor building; or

(b)

aright,power,orprivilege,over,orinconnectionwith,

the land. Compare: Trade Practices Act 1974 s 53A (Aust)

Section 14(1)(a): amended, on 8 July 2003, by section 3 of the Fair Trading Amendment Act 2003 (2003 No 31).

15 Limited application of sections 9 to 14 to news media

(1)

Nothing in sections 9 to 14 applies to the publication of any information or matter in a newspaper by the publisher of that newspaper, not being—

(a)

the publication of an advertisement; or

(b)

the publication of any information or matter relating to the supply or possible supply or the promotion of the supplyoruseofgoodsorservicesorthesaleorgrantor thepossiblesaleorgrantorthepromotionofthesaleor grant of an interest in land by—

(i)

that publisher or, where that publisher is a body corporate,byanyinterconnectedbodycorporate; or

(ii)

any person who is a party to any contract, arrangement, or understanding with that publisher relating to the content, nature or tenor of the information or matter.

(2)

Nothing in sections 9 to 14 applies to the broadcasting of any information or matter by a broadcasting body, not being—

(a)

the broadcasting of an advertisement; or

(b)

the broadcasting of any information or matter relating tothesupplyorpossiblesupplyorthepromotionofthe supplyoruseofgoodsorservicesorthesaleorgrantor thepossiblesaleorgrantorthepromotionofthesaleor grant of an interest in land by—

(i)

that broadcasting body, or where that broadcasting body is a body corporate, by any interconnected body corporate; or

(ii)

any person who is a party to any contract, arrangement,orunderstandingwiththatbroadcasting body relating to the content, nature or tenor of the information or matter.

(3)

For the purposes of this section—

(a)

the expressions broadcasting and broadcasting body shall have the same meanings as they have in section 2 of the Broadcasting Act 1976:

(b)

newspaper has the meaning given to that term by sec tion2 oftheFilms,Videos,andPublicationsClassification Act 1993:

(ba) publisher,inrelationtoanewspaper,meansitsproprietor:

(c)

any2ormorebodiescorporatearetobetreatedasinterconnected if one of them is a body corporate of which theotherisasubsidiary(withinthemeaningofsections 158and158AoftheCompaniesAct1955or sections5 and 6 of the Companies Act 1993, as the case may be), or if both of them are subsidiaries (within the meaning of those sections) of one and the same body corporate; andinterconnectedbodycorporateshallbeconstrued accordingly.

Section 15(3)(b): substituted, on 27 April 1995, by section 4(3) of the News papers and Printers Act Repeal Act 1995 (1995 No 13).

Section15(3)(ba): inserted,on27April1995,bysection4(3)oftheNewspapers and Printers Act Repeal Act 1995 (1995 No 13).

Section15(3)(c): substituted,on1July1994,bysection2oftheCompanyLaw Reform (Transitional Provisions) 1994 (1994 No 16).

16 Certain conduct in relation to trade marks prohibited

(1)

No person shall, in trade,—

(a)

forge any trade mark; or

(b)

falsely apply to any goods any trade mark or sign so nearlyresemblingatrademarkastobelikelytomislead or deceive; or

(c)

falsely use in relation to the provision of services any trademarkorsignsonearlyresemblingatrademarkas to be likely to mislead or deceive.

(2)

For the purposes of this section a person shall be deemed to forge a trade mark if that person—

(a)

withouttheconsentoftheproprietorofthetrademark, makes that trade mark or a sign so nearly resembling thattrade mark as to belikelytomislead or deceive; or

(b)

falsifiesanygenuinetrademark,whetherbyalteration, effacement or otherwise.

(3)

For the purposes of this Part— sign includes—

(a)

abrand,colour,device,heading,label,letter,name,numeral, signature, smell, sound, taste, ticket, or word; and

(b)

any combination of signs

trade mark means a trade mark within the meaning of the Trade Marks Act 2002; and includes,—

(a)

inthecaseofgoods,anysignuseduponorinconnection with the goods for the purpose of indicating that they are—

(i)

goods of the proprietor of the sign by virtue of manufacture, selection, certification, dealing with, or offering to supply; or

(ii)

goods of a member of a body of persons that is the proprietor of the sign; or

(iii) goods certified by the proprietor of the sign in respectoforigin,material,modeofmanufacture, quality, accuracy, or other characteristic; and

(b)

inthecaseofservices,anysignusedinconnectionwith the provision of the services for the purpose of indicating that they are—

(i)

services of the proprietor of the sign; or

(ii)

servicesofamemberofabodyofpersonsthatis the proprietor of the sign.