Packaging & Quantity
Merchandise Marks Act, 1970
AN ACT TO MAKE PROVISION IN RELATION TO THE INFORMATIVE MARKING OF CONTAINERS IN WHICH GOODS ARE PACKED FOR SALE BY RETAIL, TO REGULATE THE QUANTITIES OF GOODS WHICH MAY BE PACKED IN CONTAINERS FOR SUCH SALE, TO PROVIDE FOR MATTERS CONNECTED WITH THE MATTERS AFORESAID AND TO AMEND THE MERCHANDISE MARKS ACTS, 1887 TO 1931. [28th July, 1970.]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Definitions.
1.—In this Act—
“container” means a container in which goods are packed at any time before being offered for sale by retail and which is suitable for such sale, and includes a bag, bottle, box, can, carton, envelope, net, sack or wrapper (whether or not such wrapper fully encloses its contents or portion of its contents are exposed) in which goods are so packed;
“goods” means anything which is the subject of trade, manufacture or merchandise;
“the Minister” means the Minister for Industry and Commerce;
“sold” includes offered, exposed or kept for sale or distributed for reward and cognate words shall be construed accordingly.
Orders in relation to marking and contents of containers.
2.—(1) The Minister may by order provide that goods of a kind specified in the order—
(a) shall not be packed in a container unless the container or (if there is an inner container or containers and an outer container) at least one container bears a notice which is easily visible without removing or opening any container, is in such form as may be specified in the order and states clearly the quantity of the goods in the container by reference to such one or more of the following, that is to say, their weight, measure and number, as may be specified in the order, and, if the Minister so thinks fit, the name and address of the packer of the goods,
(b) shall not be packed in a container in any quantity other than a quantity specified in the order by reference to such one or more of the following, that is to say, the weight, measure and number of the goods, as may be specified in the order,
(c) shall not be imported by way of trade or sold by retail, packed in a container unless the container or (if there is an inner container or containers and an outer container) at least one container bears a notice which is easily visible without removing or opening any container, is in such form as may be specified in the order and states clearly the quantity of the goods in the container by reference to such one or more of the following, that is to say, their weight, measure and number, as may be specified in the order, and, if the Minister so thinks fit, the name and address of the packer of the goods or, if the goods have been imported packed in the container, of the importer of the goods,
(d) shall not be imported by way of trade or sold by retail, packed in any quantity in a container other than a quantity specified in the order by reference to such one or more of the following, that is to say, the weight, measure and number of the goods, as may be specified in the order.
(2) Where an order under this section requires the quantity of goods packed in a container to be indicated in a notice on the container or that goods shall not be packed in a container in any quantity other than a quantity specified in the order, the order may provide that the quantity of the goods to be indicated as aforesaid or the quantity of goods specified as aforesaid, as the case may be, shall not include any quantity of liquid or other substance added to the goods at the time at which they are packed in the container and may specify the manner in which it shall be ascertained whether the quantity of the goods in the container is in compliance with the provisions contained in the order by virtue of this subsection.
(3) An order under this section may specify the manner in which the quantity of goods packed in a container shall be ascertained.
(4) Where an order under this section requires a container to bear a notice, the order may specify the manner in which the notice is to be shown on the container.
(5) An order under this section may include such provisions as the Minister thinks desirable to ensure that a notice displayed on a container in pursuance of the order is clearly visible and legible and that it is not so displayed as to convey or be likely to convey false or misleading information in relation to the quantity of the contents of the container.
(6) An order providing for the matters specified in paragraph (a) or (b) of subsection (1) of this section shall not, in so far as it so provides, apply in relation to goods intended to be exported from the State.
(7) An order under this section shall not apply in relation to any goods in respect of which the Minister, being satisfied that the goods were, at the time they were being packed in containers, intended to be exported and that it is reasonable to allow the sale of the goods in the State without compliance with the provisions of this Act, grants an authorisation in writing permitting such sale.
(8) An order under this section may provide that where the quantity of goods of any kind packed in a container is greater or less by not more than a specified amount or percentage than—
(a) the quantity of goods of that kind indicated in a notice of the kind specified in paragraph (a) or (c) of subsection (1) of this section on the container, or
(b) a quantity specified by order for the purposes of paragraph (b) or (d) of subsection (1) of this section in relation to goods of that kind,
the quantity so packed shall be deemed, for the purpose of those paragraphs, to be the same as the quantity so indicated or specified, as the case may be, and different amounts or percentages may be specified in relation to goods of different kinds, different quantities of goods and different kinds of containers.
(9) An order under this section may provide that the order shall not apply in circumstances or subject to conditions specified in the order.
(10) At least two months before the date of the making of an order under this section there shall be published in Iris Oifigiúil and in at least one daily newspaper notice of the Minister’s intention to make the order and a brief statement of the effect of the order.
(11) The Minister may by order amend or revoke an order under this section (including an order under this subsection).
(12) An order shall not be made under this section without prior consultation by the Minister with such persons as appear to him to be substantially interested in the general subject-matter of the order unless, in the case of an order under subsection (11) of this section, it is, in the opinion of the Minister, necessary to make the order without such consultation.
Implied warranty in relation to packing of goods.
3.—(1) In a contract of sale of goods of a kind in relation to which an order under section 2 of this Act applies, there is an implied warranty that the packing of the goods is not in contravention of the provisions of this Act or of an order under this Act and is not such as to occasion, in relation to the sale or importation of the goods, a contravention of those provisions.
(2) A contract of sale that has the effect, directly or indirectly, of depriving a person of the benefit of a warranty of the kind specified in subsection (1) of this section shall, insofar as it has the effect aforesaid, be void.
Powers of authorised officers.
4.—(1) In this section “authorised officer” means a person authorised in writing by the Minister or by the council of a county or corporation of a county or other borough in relation to its functional area to exercise for the purposes of the Merchandise Marks Acts, 1887 to 1931, and this Act, the powers conferred by this section.
(2) The authorisation of an authorised officer shall indicate the matters in respect of which he may act under this section.
(3) An authorised officer may, for the purpose of obtaining any information which may be required in order to enable the Minister or the council of a county or the corporation of a county or other borough, as the case may be, to exercise his or its functions under the Merchandise Marks Acts, 1887 to 1931, or this Act, on production of the officer’s authorisation, if so required—
(a) at all reasonable times enter premises at which any activity in connection with the packing of goods in containers or the manufacturing, processing, supplying, distributing or importing of goods is carried on and inspect the premises and any containers or goods packed in containers on the premises and, on paying or making tender of payment therefor, take one or more of the containers (either with or without goods packed in it or them) and, if he so thinks fit, carry out inspections, tests and measurements thereof on the premises,
(b) require the person who carries on such activity and any person employed in connection therewith to produce to the officer any books, documents or records relating to such activity which are in that person’s power or control and to give him such information as he may reasonably require in regard to any entries in such books, documents and records,
(c) inspect and copy or take extracts from such books, documents and records,
(d) require such a person to give to the officer any information he may require in regard to the persons carrying on such activity (including, in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and of its committee of management or other controlling authority) or employed in connection therewith,
(e) require such a person to give to the officer any other information which the officer may reasonably require in regard to such activity.
(4) An authorised officer who takes a container pursuant to this section shall—
(a) notify forthwith the person on whose premises the container is taken or his agent that the container is taken in pursuance of this section, and
(b) if so required by such person or agent at the time of the giving of the notification, take a second like container or select one container from the containers taken by him and mark and seal and leave with such person or agent the second container or the container so selected, as the case may be.
(5) Where an article is being tested or inspected under this section and other like articles were available at the time and place at which the article was obtained, such number of the articles as is reasonable in the circumstances shall be tested or inspected, as the case may be.
(6) A person who obstructs or impedes an authorised officer in the exercise of a power or does not comply with a requirement under this section shall be deemed to contravene this section.
Offences.
5.—(1) A person who contravenes or is deemed to contravene a provision of this Act or of an order under this Act shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both the fine and the imprisonment or, in the case of a person who contravenes a provision of an order aforesaid, on conviction on indictment to a fine not exceeding two thousand pounds or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both the fine and the imprisonment.
(2) Where a person is charged with an offence under this Act in relation to the quantity of goods packed in a container, it shall be a defence to the charge for him to show that the quantity of goods in the container at the time of the packing or importation of the goods was in compliance with the provisions of the Act and that any variation in such quantity was caused by matters for which reasonable allowance had been made at the time of the packing of the goods.
(3) Where, in relation to goods, a person other than the person who packed or imported the goods is charged with an offence under this Act, it shall be a defence to the charge for him to show that he dealt in the goods in good faith and took reasonable precautions to ensure that the quantities of the goods packed in containers complied with the provisions of this Act and (if the offence consists of the contravention of a provision of a kind specified in section 2 (1) (a) or section 2 (1) (c) of this Act) that the containers bore notices which complied with the provisions of this Act.
(4) Where a person is charged with an offence under this Act in relation to goods packed in a container, it shall be a defence to the charge for him to show—
(a) that he took reasonable precautions against committing, in relation to the goods, an offence of the kind with which he is charged,
(b) that at the time of the commission of the alleged offence, he had no reason to suspect that the packing, importation or sale, as the case may be, of the goods was in contravention of the provisions of this Act or of an order under this Act, and
(c) that the packing, importation or sale, as the case may be, of the goods in contravention of the provisions of this Act or of an order under this Act, was due to a cause beyond his control.
Prosecution of offences.
6.—(1) Proceedings in relation to an offence under this Act may be brought and prosecuted by the Minister or by the council of the county or the corporation of the county or other borough in which the offence is alleged to have been committed.
(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under this Act may be instituted within twelve months from the date of the offence.
(3) Any expenses incurred by a council of a county or the corporation of a county or other borough under this section shall be defrayed in the same manner as expenses incurred under section 19 of the Merchandise Marks Act, 1931 , by a local authority specified in that section.
Transfer of certain functions under Merchandise Marks Act, 1931, to Minister.
7.—The functions, powers and duties conferred or imposed on the Government under sections 7 , 8 , 9 , 11 , 12 , 14 and 15 of the Merchandise Marks Act, 1931 , are hereby transferred to the Minister and, accordingly, references in those sections to the Executive Council (other than the first such reference and the third such reference in the said section 7) shall be construed as references to the Minister and references in the said section 12 to a restriction order shall be construed as references to an order under the said section 8.
Offences in relation to bodies corporate and unincorporated bodies.
8.—Where an offence under this Act which is committed by a body corporate or an unincorporated body of persons is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager, secretary, member of the committee of management or other controlling authority of any such body or being any other similar officer of any such body, that person shall also be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Increase of certain penalties.
9.—(1) Section 2 (3) of the Merchandise Marks Act, 1887 , is hereby amended by the substitution for paragraph (ii) of the following paragraph:
“(ii) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds; and”.
(2) Section 8 (3) of the Merchandise Marks Act, 1887 , is hereby amended by the substitution of “one hundred pounds” for “twenty pounds”.
(3) Section 23 of the Merchandise Marks Act, 1931 , is hereby amended by the substitution of “to a fine not exceeding one hundred pounds” for “, in the case of a first offence to a fine not exceeding five pounds, and in the case of a second or any subsequent offence to a fine not exceeding twenty pounds”.
Amendment of section 6 of Merchandise Marks Act, 1931.
10.—(1) Section 6 of the Merchandise Marks Act, 1931 , is hereby amended by—
(a) the deletion in subsection (3) of “in accordance with regulations to be made by the Minister for Finance” and “, having regard to the length of time and the expense which in the opinion of the Commission will be involved in the consideration of the application”, and
(b) the substitution of “Minister for Finance,” for “said Minister”.
(2) Subsection (1) of this section shall be deemed to have come into operation on the 1st day of April, 1968.
Import licences.
11.—(1) Where, in the case of any goods the importation of which is prohibited by or under this Act, or the Merchandise Marks Acts, 1887 to 1931, the Minister is of opinion that enforcement of the prohibition would cause undue hardship, the Minister may, at his discretion on application being duly made to him, grant a licence (in this section referred to as a licence) authorising the importation by the person named in the licence of those goods.
(2) The Minister may attach to a licence such conditions as he shall think proper and shall specify in the licence.
(3) The Minister may revoke a licence.
(4) Every person who, for the purpose of obtaining for himself or any other person a licence, makes any statement or representation which is to his knowledge false or misleading in any material respect or who fails to comply with a condition attached to a licence shall be guilty of an offence under this section.
(5) An application for a licence shall be in such form and contain such particulars as the Minister may from time to time direct.
(6) Notwithstanding anything in this Act or in an order under section 2 of this Act, a person named in a licence for the time being in force may, subject to compliance with any conditions attached to the licence, import the goods specified in the licence.
Temporary importation.
12.—Where the Revenue Commissioners are satisfied that any goods the importation of which is prohibited under this Act are goods imported for export after transit through the State or by way of transhipment or are goods declared on importation to be for re-exportation, the Revenue Commissioners may, subject to compliance with such conditions as they may think fit to impose, permit the goods to be imported.
Laying of orders before Houses of the Oireachtas.
13.—Every order made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House, within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
Expenses of Minister.
14.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
Short title and collective citation.
15.—(1) This Act may be cited as the Merchandise Marks Act, 1970.
(2) The Merchandise Marks Acts, 1887 to 1931, and this Act may be cited together as the Merchandise Marks Acts, 1887 to 1970.
S.I. No. 567/2008 –
Merchandise Marks Act 1970 (Prepacked Goods) (Marking and Quantities) (Revocation) Order 2008
MERCHANDISE MARKS ACT 1970 (PREPACKED GOODS) (MARKING AND QUANTITIES) (REVOCATION) ORDER 2008
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 26th December, 2008.
I, MARY COUGHLAN, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 2(11) of the Merchandise Marks Act 1970 (No. 10 of 1970) (as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order 1997 ( S.I. No. 305 of 1997 )) hereby order as follows:
1. (1) This order may be cited as the Merchandise Marks Act 1970 (Prepacked Goods) (Marking and Quantities) (Revocation) Order 2008.
(2) This Order comes into operation on 11 April 2009.
2. The following orders are revoked:
(a) Merchandise Marks (Prepacked Goods) (Marking and Quantities) Order 1973 ( S.I. No. 28 of 1973 );
(b) Merchandise Marks (Prepacked Goods) (Marking and Quantities)(Amendment) Order 1973 ( S.I. No. 267 of 1973 );
(c) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1979 ( S.I. No. 222 of 1979 );
(d) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1981 ( S.I. No. 394 of 1981 );
(e) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1983 ( S.I. No. 367 of 1983 );
(f) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1985 ( S.I. No. 295 of 1985 );
(g) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1986 ( S.I. No. 100 of 1986 );
(h) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1989 ( S.I. No. 23 of 1989 );
(i) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1989 ( S.I. No. 284 of 1989 ); and
(j) Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment) Order 1990 ( S.I. No. 266 of 1990 ).
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GIVEN under my Official Seal,
17 December 2008
MARY COUGHLAN.
Minister for Enterprise, Trade and Employment.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation)
This Statutory Instrument revokes all the Orders made under the Merchandise Marks Act, 1970 since 1973 which specify the nominal quantities for prepacked products. The present Order arises from the transposition of Directive 2007/45/EC of the European Parliament and of the Council of 5 September 2007 laying down rules on nominal quantities for prepacked products, repealing Council Directives 75/106/EEC and 80/232/EEC and amending Council Directive 76/211/EEC. The effect of the Directive is to deregulate from 11th April 2009 almost all of the rules on nominal quantities for prepacked products. These rules are sometimes called range of sizes legislation and their purpose is to restrict the sizes in which certain products can be placed on the market. From 11th April 2009 the only mandated sizes for prepacked products will be for those wines and spirits specified in the Annex to the Directive. The Order comes into operation on 11th April 2009.
PACKAGED GOODS (QUANTITY CONTROL) ACT, 1980
AN ACT TO MAKE PROVISION IN RELATION TO PACKAGED GOODS. [11th June, 1980]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART I
Preliminary and General
Short title and commencement.
1.—(1) This Act may be cited as the Packaged Goods (Quantity Control) Act, 1980.
(2) This Act shall come into force on such day as the Minister may fix by order.
Interpretation.
2.—(1) In this Act—
“the Act of 1970” means the Merchandise Marks Act, 1970 ;
“container” includes a bag, bottle, box, case, carton, envelope, net, sack or wrapper and also an inner container;
“equipment” includes any electrical or other appliance or equipment (or any part thereof) or any other machine or machinery (or any part thereof);
“goods” means anything which is the subject of trade, manufacture or merchandise and, in relation to a package, excludes the container included in the package;
“importer” in relation to a package means, subject to subsection (3) of this section, the person by whom or on whose behalf the package is entered for customs purposes on importation;
“inspector” means, except in section 3 (2) (h) of this Act, a person who is appointed under section 13 of this Act by the Minister to be an inspector for the purposes of this Act;
“the e-mark” has the meaning assigned to it by section 11 of this Act;
“the Minister” means the Minister for Industry, Commerce and Tourism;
“package” means a container containing goods together with the goods in the container;
“packer” means, in relation to a package, the person who in the course of carrying on a business placed or caused to be placed in the container included in the package the goods so included;
“prescribed” means prescribed by regulations under this Act.
(2) If two or more different quantities are expressed on a package to which section 8 of this Act applies, of those quantities all except the one which indicates the larger or largest quantity shall be disregarded for the purposes of this Act.
(3) Where a package which is marked with the e-mark is brought into the State from another member state of the European Economic Community, then for the purposes of this Act the package shall be regarded as not having been imported.
(4) In case a notice described in section 3 (2) (i) of this Act is for the time being in force, then as regards the person on whom the notice is served section 11 (3) of this Act shall be construed and have effect subject to the terms of the notice.
Regulations.
3.—(1) The Minister may make regulations for prescribing any matter referred to in this Act as prescribed; provided that in so far as any such regulations provide for the charging of fees they shall only be made with the consent of the Minister for Finance.
(2) Regulations under this Act may—
(a) apply to packages generally or to packages of a particular class or description,
(b) provide that where a package includes an outer container and one or more inner containers, such of the containers as is prescribed shall for all or any prescribed purposes of this Act be disregarded,
(c) provide that, for the purposes of section 9 (3) of this Act, equipment shall not be regarded as being suitable unless it is made from specified materials or according to or with regard to a prescribed specification or a prescribed principle,
(d) provide for the inspection, testing and certification of equipment which may be used to make up or to check packages to which section 8 of this Act applies,
(e) provide for the payment to the Minister of prescribed fees as regards such inspection, testing and certification,
(f) provide that, where an inspector as a result of the exercise of a power conferred on him by section 14 of this Act finds that a person has failed to perform a duty imposed on him by section 9 of this Act—
(i) the inspector may give to the person a notice requiring him to take, within such period as may be specified in the notice (which period shall be a period of not less than twenty-one days), such steps as are necessary to ensure that the requirements of the said section 9 are complied with in relation to the matter, and
(ii) in case for the purpose of ascertaining whether or not the requirements of the notice have been complied with, an inspector at any time after the expiration of the said period exercises any such power, there shall be payable to the Minister by the person such fee as may be prescribed for the purposes of this subparagraph,
(g) provide that in deciding whether or not—
(i) for the purposes of this Act equipment is suitable or has been appropriately used, or
(ii) checks or records are adequate for the said purposes, or
(iii) information is adequate to show that a person is likely to have discharged the duty imposed on him by section 9 (1) of this Act, regard may be had to prescribed documents (which documents may be or include codes or parts of codes of practical guidance),
(h) provide that the Weights and Measures Acts, 1878 to 1961, shall not, by reason only of the fact that a weight, measure or measuring instrument of a prescribed class or description is used for or in connection with the discharge of a duty imposed by section 9 of this Act, be construed as requiring that weight, measure or measuring instrument to be verified and stamped by an inspector of weights and measures,
(i) enable an inspector to give to any person a notice providing that, until an inspector informs the person in writing that the notice is cancelled, none, or only such one or more as may be specified in the notice, of the following paragraphs, that is to say, paragraphs (a), (b) and (c) of section 11 (3) of this Act shall apply to him as respects packages of a kind specified in the notice or a place so specified,
(j) contain such provisions as the Minister considers appropriate with respect to the dimensions of a mark prescribed for the purposes of section 11 of this Act and the manner and position in which it is to be applied to the container included in a package to which section 8 of this Act applies.
(3) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
Exemptions.
6.—(1) Where, on an application being made to him in that behalf, the Minister is satisfied that because of—
(a) a difficulty in obtaining or providing any appliance, equipment, machine or machinery,
(b) an inability to or a difficulty in recruiting or training staff,
(c) the holding of stocks of containers or of labels or other documents,
(d) any other consideration which in the particular circumstances of the case is relevant,
it would be unreasonable to require the applicant to comply with all or any of the requirements of this Act without being given a period within which to prepare for such compliance, then subject to subsection (2) of this section he may grant to the applicant an exemption under this section.
(2) An exemption under this section shall be given by the Minister in writing and shall remain in force for such period as shall be specified therein provided that a period so specified shall not end on any day which is later than the 31st day of December, 1985.
(3) An exemption under this section may—
(a) be expressed to relate to any package made up or imported by the applicant or to packages so made up or imported which are of a specified class or description,
(b) be granted subject to such conditions (if any) as the Minister shall specify therein when granting the exemption.
(4) The following provisions shall apply in relation to an exemption granted under this section:
(a) in case the exemption is granted subject to a condition, if the condition is not complied with the exemption shall upon such non-compliance cease to have effect, and
(b) for so long as the exemption remains in force this Act shall, as regards any package which is a package to which the exemption relates, be construed and have effect subject to the terms of the exemption.
PART II
Packaged Goods
Packages.
8.—(1) Subject to subsection (2) of this section, this section applies to any package which has in the course of carrying on a business either been made up in the Sate or imported and which—
(a) has been made up otherwise than in the presence of the person purchasing the package, and
(b) has expressed thereon, or, in case regulations under section 3 (2) (b) of this Act and relating to the package are for the time being in force, on the relevant container, a quantity purporting to be the quantity of goods included in the package and expressed in units of weight or volume being, in case the quantity is expressed in units of weight, a quantity not less than 5 grams, or, in case the quantity is expressed in units of volume, a quantity not less than 5 millilitres, and
(c) is a package the contents of which, or any part of such contents, cannot be removed without opening it.
(2) The Minister may by regulations declare that this section shall not apply, or shall only apply with prescribed modifications, in relation to any package (being a package to which this section would otherwise apply, or, as may be appropriate, would otherwise apply without modification) which is of a prescribed class or description, and for so long as regulations under this subsection are in force this section shall be construed and have effect subject to their terms.
Duties of packers and importers as regards quantity of goods included in packages.
9.—(1) It shall be the duty of a person who is the packer or importer of packages to which section 8 of this Act applies to ensure that when a group of the packages, being packages each of which is marked with the same quantity, is selected in the prescribed manner and the packages in the group or such a portion of the group as is so selected are tested in the prescribed manner by an inspector—
(a) the total quantity of the goods shown by the test to be included in the packages tested divided by the number of those packages is not less than the quantity expressed on each of those packages; and
(b) the number of non-standard packages among those tested is not greater than the number prescribed as acceptable in relation to the number tested.
(2) Where, as a result of a test in respect of a group of packages which is carried out when the packages are in the possession of the packer or importer of the packages or another person, it is shown that the packer or importer of the packages has failed to perform the duty imposed on him by subsection (1) of this section in respect of the packages, then, without prejudice to the liability of the packer or importer under section 17 of this Act in respect of the failure, it shall be the duty of the person in possession of the packages to keep them in his possession until—
(a) he is authorised by an inspector to dispose of them, or
(b) if he is the packer or importer of them, he has performed his duty under subsection (1) of this section in respect of the group.
(3) It shall be the duty of a person who makes up packages to which section 8 of this Act applies either—
(a) to use in an appropriate manner in making up the packages equipment which is both suitable and of a prescribed kind, or
(b) (i) to carry out, at the prescribed time, a check which is adequate to show whether he has performed the duty imposed on him by subsection (1) of this section as regards the packages, and—
(ii) so to use suitable equipment of the prescribed kind in carrying out the check, and
(iii) to make, and to keep for the prescribed period, an adequate record of the check.
(4) It shall be the duty of a person who is the importer of packages to which section 8 of this Act applies either—
(a) to carry out at the prescribed time a check of the kind mentioned in paragraph (b) of subsection (3) of this section and to comply with subparagraph (ii) and (iii) of that paragraph as regards the check; or
(b) (i) to obtain, within the prescribed period and as regards the packages, documents containing such information concerning the packages as will be adequate to show that the packer is likely to have discharged, as regards the packages, the duty which would have been imposed on him by subsection (1) of this section had the packages been made up in the State, and
(ii) to retain for the prescribed period such documents.
(5) For the purposes of this section a package to which section 8 of this Act applies shall be regarded as being non-standard if the quantity of the goods included in the package is less, by more than an amount prescribed for the purposes of this section, or, as may be appropriate, an amount calculated in the manner so prescribed, than the quantity expressed on the package and referred to in section 8 (1) (b) of this Act.
Duties of packers and importers as regards marking packages.
10.—(1) Subject to subsection (2) of this section, it shall be the duty of the person who is the packer of, or by whom in the course of a business is imported, a package to which section 8 of this Act applies to ensure—
(a) that the quantity expressed on the package and referred to in section 8 (1) (b) of this Act is so expressed in the prescribed units of weight or volume, and
(b) that such quantity is expressed in the prescribed manner, and
(c) that there are so expressed such other particulars (if any) as may be prescribed, and
(d) that such quantity and, where appropriate, such other particulars are so expressed in a manner as will enable them easily to be read without opening the package.
(2) (a) The Minister may, if he thinks fit, for the purposes of identifying—
(i) the packer by whom and the place at which a package to which section 8 of this Act applies is made up, or
(ii) the name of the importer by whom such a package is imported and the address in the State at which he carries on business as an importer,
arrange with any person for the application by the person to packages of a class or description specified in the arrangement of a mark so specified.
(b) Where there is for the time being an arrangement under this subsection, if a package which is of a class or description specified in the arrangement is marked with the mark so specified, then, in so far as regulations under this section require the packer and place or the importer and address referred to in paragraph (a) of this subsection to be expressed on the package they shall be regarded as having been complied with.
(3) The provisions of subsection (1) of this section are in addition to and not in substitution for those of any other enactment; provided that in case—
(a) a package to which section 8 of this Act applies includes goods specified in an order under section 2 (1) of the Act of 1970, and
(b) the duties imposed by this section are complied with in relation to the package,
then if such order is made pursuant to paragraph (a) or (c) of the said section 2 (1), the requirements included in the order by virtue of either or both of those paragraphs, as may be appropriate, shall be regarded as having been complied with as regards the package.
E-mark.
11.—(1) This section applies to any package which is of a class or description prescribed for the purposes of this section.
(2) A person shall not in the course of carrying on a business—
(a) mark with the e-mark any package which is not a package to which this section applies,
(b) so mark any package which is a package to which this section applies unless he is either the packer or the importer of the package or is acting on behalf of such packer or importer,
(c) mark any package with a mark so closely resembling the e-mark as to be likely to deceive.
(3) Subject to section 3 (2) (i) of this Act, it shall be the duty of—
(a) the packer of packages which are marked with the e-mark and which he intends to export from the State; and
(b) a person who intends to import packages which are so marked and to export them from the State to a place in another member state of the European Economic Community; and
(c) a person who intends to import packages, to mark them with the e-mark and to export them in the manner mentioned in paragraph (b) of this subsection,
to give, within the prescribed period and in the prescribed manner, to the Minister a notice containing such information about the packages as is prescribed and, in the case of a person described in paragraph (b) or (c) of this subsection, such further information about the packages in question as an inspector may specify in a notice in writing served on the person by the inspector.
(4) In this Act “the e-mark” means such mark as may be for the time being prescribed for the purposes of this section.
PART III
Miscellaneous
Certain statements not to be regarded as trade descriptions, etc.
12.—(1) A statement of quantity expressed on a package in pursuance of section 10 (1) (a) of this Act shall not be regarded as being a trade description within the meaning of the Merchandise Marks Act, 1887 , as amended by section 2 (2) of the Consumer Information Act, 1978 .
(2) For the purposes of section 5 of the Act of 1970 the weight or measure of the goods included in a package to which section 8 of this Act applies shall be regarded as being equal to the quantity expressed on the package.
Inspectors.
13.—(1) The Minister may appoint any person who is either—
(a) an officer of the Minister, or
(b) a person who for the time being stands appointed under the Weights and Measures Acts, 1878 to 1961, as an inspector of weights and measures,
to be an inspector for the purposes of this Act.
(2) Every person appointed under subsection (1) of this section by the Minister to be an inspector shall be furnished with a certificate of his appointment and when exercising a power under this Act shall, if requested by any person thereby affected, produce such certificate for inspection by the person.
(3) Without prejudice to any power apart from this subsection of the Minister as regards the revocation of appointments, the Minister may at any time revoke an appointment under this section, and in case the Minister revokes an appointment under this section, the person whose appointment is so revoked shall forthwith give to the Minister the certificate furnished to him under this section.
Powers of inspectors.
14.—(1) For the purposes of giving effect to this Act, an inspector may—
(a) at all reasonable times enter any premises, other than a dwelling, in which he reasonably believes there are for the time being packages to which section 8 of this Act applies,
(b) inspect such premises and examine any packages found thereon which he reasonably believes to be packages to which the said section 8 applies,
(c) subject to subsection (4) of this section, open any such package and examine, test (including testing to destruction) and measure any goods or container included in such package,
(d) subject to subsection (4) of this section, take away from the premises for examination, testing and measuring any such package,
(e) test any equipment which he reasonably believes may be used to make up or to check packages to which section 8 of this Act applies,
(f) require any person, other than an officer of Customs and Excise, whom he finds on such premises to produce for inspection by such inspector any books, records or other documents which are in that person’s power or control and which relate to such packages or to the goods included therein and to give to him such information (being information in the person’s possession) as he may require in relation to any entries in such books, records or other documents,
(g) inspect and copy or take extracts from any such books, records, or other documents,
(h) in case he finds on such premises any such package, require any person whom he so finds to give to him, if known to such person, the name of the person by whom the package was made up, imported or distributed,
and, if an inspector has reasonable grounds for suspecting that a person has failed or is failing to perform the duty imposed on him by section 9 or 10 of this Act as regards any package found on premises entered by the inspector pursuant to this section, or that any such package is, for the purposes of section 17 (5) of this Act, inadequate, he may seize and retain the package and anything else so found and which appears to him to be something which might be required as evidence in proceedings for an offence under this Act.
(2) If an inspector has reasonable cause to believe that a person has failed to perform the duty imposed on him by section 9 of this Act in relation to a group of packages, the inspector may serve on the person in possession of the packages a notice in writing specifying the packages and requiring him to keep the packages at a place specified in the notice and at the disposal of the inspector for a period so specified (being a period not greater than one month).
(3) An inspector may in the course of exercising a power conferred on him by subsection (1) of this section require a person whom he finds on premises entered by him in exercise of such a power to—
(a) enable such inspector to use anything which is then under the person’s control and is required by the inspector for the purpose of making an examination, test or measurement, under the said subsection (1),
(b) render, or cause to be rendered, for or in connection with such purpose, such personal assistance as the inspector shall reasonably specify.
(4) If an inspector—
(a) breaks open a package in pursuance of subsection (1) (c) of this section otherwise than on premises occupied by the packer or importer of the package and, for the purposes of section 17 (5) of this Act, the package is not inadequate,
(b) takes away a package in pursuance of subsection (1) (d) of this section,
it shall be the duty of the inspector, if the owner of the package requests him so to do, to buy the package on behalf of the Minister.
Appeal against seizures.
15.—Any person who is aggrieved by a seizure and retention under this Act may appeal to a Justice of the District Court and in determining the appeal the Justice may—
(a) if he is satisfied that the package or other thing was properly seized, confirm the seizure and retention, and
(b) if he is not so satisfied, order the person who made the seizure to return to the person the package or other thing seized and order the Minister to pay to the person such compensation (if any), costs (if any) and expenses (if any) as he considers reasonable having regard to any loss, costs and expenses incurred by the person by reason of the seizure and retention.
Disposal of things seized.
16.—(1) An inspector who, in accordance with this Act, has seized any package or other thing shall not dispose of it without the consent in writing of the owner or the person in apparent charge or control of it, but in the case of any thing other than a document, it may be disposed of if a direction is given pursuant to this section by a Peace Commissioner for its disposal.
(2) A person who under this Act has seized any package may, on giving notice in writing to the owner or to the person who, when the seizure was made, was in apparent charge or control of it of his intention to do so, apply to a Peace Commissioner for a direction that the package be disposed of (by destruction or otherwise) in a manner specified in the direction.
(3) A Peace Commissioner to whom an application in that behalf is duly made under this section shall, if he is satisfied that the goods included in any package in respect of which the application is made are, or are likely, before it can be used as evidence in proceedings for an offence under this Act, to become, unfit for human consumption, or if he is satisfied for any other reason that the package ought not to be further retained, give a direction under this section authorising its disposal (by destruction or otherwise).
(4) Where a direction is given under this section, the person who applied for the direction shall, as soon as may be, give notice of the making of the direction to the person to whom notice was given in pursuance of subsection (2) of this section.
(5) Any person who is aggrieved by a direction under this section may, not later than seven days after the making of the direction, appeal to a Justice of the District Court against the direction and in determining the appeal the Justice may—
(a) if he is satisfied that the direction was properly given and that, having regard to the circumstances of the case, the direction should be confirmed, confirm the direction, and
(b) if he is not so satisfied, annul the direction.
(6) (a) Subject to paragraphs (c) and (d) of this subsection, a direction under this section shall not have effect until the expiration of seven days from the date of its making.
(b) If an appeal to the District Court is taken against a direction under this section, the order shall, if the District Court confirms the direction, have effect at such time as that court determines.
(c) If a Peace Commissioner is satisfied that for any reason a direction given by him under this section should have effect before the expiration of seven days from the date of its making and he specifies in the direction the time when it should so have effect, the direction shall have effect at the time so specified.
(d) Where a thing is disposed of in accordance with a direction under this section and, on appeal, the District Court annuls the direction, the District Court may order the payment by the Minister to the owner of such compensation (if any), costs (if any) and expenses (if any) as it considers reasonable having regard to any loss, costs and expenses incurred by the owner by reason of the disposal under this section.
(7) Where a Peace Commissioner gives a direction pursuant to this section, he shall, on the production to him of the thing to which the direction relates by the person applying for the direction, give to that person a certificate in the prescribed form describing the thing and stating that a direction under this section has been given by him in respect of it.
(8) Moneys payable pursuant to a disposal under this section shall be paid to the Minister.
Offences.
17.—(1) A person who fails to perform a duty imposed on him by subsection (1), (3) or (4) of section 9 or subsection (1) of section 10 of this Act shall be guilty of an offence.
(2) A person who contravenes section 9 (2) of this Act shall be guilty of an offence.
(3) A person who obstructs or impedes an inspector in the exercise of a power, or who does not comply with a requirement made by an inspector under this Act, shall be guilty of an offence.
(4) Any person who—
(a) purports to perform the duty imposed on him by paragraph (b) of section 9 (3) of this Act, or paragraph (a) of section 9 (4) of this Act, by making a record which he knows is false in a material particular, or
(b) purports to perform the duty imposed on him by paragraph (b) of the said section 9 (4) by reference to a document containing information which he knows is false in a material particular; or
(c) with intent to deceive, alters or destroys any record kept for the purposes of this Act or any document kept for the purposes of section 9 (4) (b) of this Act,
shall be guilty of an offence.
(5) (a) If a person has in his possession for sale, agrees to sell or sells a package to which section 8 of this Act applies which is inadequate and either—
(i) he is the packer or importer of the package, or
(ii) he knows that the package is inadequate,
he shall be guilty of an offence.
(b) Where—
(i) a package to which section 8 of this Act applies is made up pursuant to an agreement or arrangement between the relevant packer and another person, and
(ii) the package is inadequate, and
(iii) such packer delivers the package to or to the order of a person to whom, under the agreement or arrangement, it falls to be delivered,
such packer shall be guilty of an offence.
(c) For the purposes of this subsection a package to which section 8 of this Act applies shall be regarded as being inadequate if the quantity of the goods included in the package is less, by more than twice the amount prescribed for the purposes of section 9 (5) of this Act, or, as may be appropriate, twice the relevant amount calculated in the manner so prescribed, than the quantity marked in pursuance of this Act on the package.
(6) Where an offence under this Act is committed by a body corporate or an unincorporated body of persons or by a person purporting to act on behalf of such a body and is proved to have been committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other officer of such body or a member of the committee or other controlling authority of such body or any person acting as such a director, manager, secretary or other official, such person shall also be guilty of the offence.
(7) Summary proceedings for an offence under this Act may be prosecuted by the Minister.
(8) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under this Act may be instituted within twelve months from the date of the offence.
Defence.
18.—In any proceedings for an offence under this Act in which it is proved that the defendant failed to discharge the duty imposed on him either—
(a) by subsection (3) of section 9 of this Act, as to the keeping of records, or
(b) by subsection (4) of the said section 9 as to the obtaining or retention of documents,
the defendant shall not be convicted of an offence under this Act by reason only of such failure if he satisfies the court that he took reasonable steps to discharge such duty.
Penalties.
19.—(1) A person guilty of an offence under subsection (1) or (5) of section 17 of this Act shall be liable, on conviction on indictment,
(a) in the case of a first offence, to a fine not exceeding £1,000, and
(b) in the case of a second or subsequent offence, to a fine not exceeding £10,000.
(2) A person guilty of an offence under this Act, other than an offence under subsection (1) or (5) of section 17, shall be liable on summary conviction to a fine not exceeding £500.
(3) A Justice of the District Court shall have jurisdiction to try summarily an offence under subsection (1) or (5) of section 17 of this Act if—
(a) the Justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,
(b) the Director of Public Prosecutions consents, and
(c) the defendant (on being informed by the Justice of his right to be tried by jury) does not object to being tried summarily,
and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £500.
(4) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to an offence under subsection (1) or (5) of section 17 of this Act as if, in lieu of the penalties specified in subsection (3) of that section, there were specified therein the penalty provided for by subsection (3) of this section, and the reference in subsection (2) (a) of that section to the penalties provided for by subsection (3) of that section shall be construed accordingly.