Hi again all,

In Ireland, I think the Consumer Protection Act 2007 is relevant. As
that is based on the Unfair Commercial Practices Directive of 2005, I
am unsure whether its UK equivalent (in which I understand the UCP
Directive was implemented through regulations) would be relevant.

In particular in the Irish legislation:

Section 74 grants a cause of action to consumers agrieved by
prohibitted commercial practices. Section 67 defines such prohibitted
practices as including misleading practices, which are defined at
length at inter alia sections 43, 44 and 46. (Section 45 does not give
rise to a cause of action for consumers.)

Section 43 provides that: "
43.-- (1) A commercial practice is misleading if it includes the
provision of false information in relation to any matter set out in
subsection (3) and that information would be likely to cause the
average consumer to make a transactional decision that the average
consumer would not otherwise make.

(2) A commercial practice is misleading if it would be likely to cause
the average consumer to be deceived or misled in relation to any
matter set out in subsection (3) and to make a transactional decision
that the average consumer would not otherwise make.


(3) The following matters are set out for the purposes of subsections
(1) and (2): ...


(b) the main characteristics of a product, including, without
limitation, any of the following: ...

(viii) its composition, ingredients, components or accessories; ...

(xii) the method or date of-- ...


(II) in the case of goods, the product's manufacture;

Average consumer is defined at Section 2(2) as:

"
(2) In this Act, "the average consumer " has the meaning assigned to
it in the Directive, and when applied in relation to a particular
commercial practice or product of a trader--


(a) if the commercial practice or product is directed at a particular
group of consumers, the expression shall be read as "the average
member of that group", and


(b) if the commercial practice or the product is a practice or product
that would be likely to materially distort the economic behaviour only
of a clearly identifiable group of consumers whom the trader could
reasonably be expected to foresee as being particularly vulnerable
because of their mental or physical infirmity, age or credulity, the
expression shall be read as "the average member of that vulnerable
group"."

http://www.irishstatutebook.ie/2007/en/act/pub/0019/index.html

It seems clear that say a cosher butcher shop which marketted itself
to persons following particular dietary laws would find that its
average consumer for the purpose of this legislation was a consumer
who followed such laws.

It is unclear to me whether a consumer who had not purchased the
product could take proceedings.

Kind regards

Ger





On 1/21/15, Katy Eloise Barnett <k.barnett@unimelb.edu.au> wrote:
> Hello all,
>
> The way in which you'd deal with this kind of situation in Australia would
> be by referring to misleading and deceptive conduct under s 18 of the
> Australian Consumer Law. I think the response would probably be to issue
> injunctions preventing any further misleading conduct, perhaps damages for
> distress, and perhaps orders for compliance plans in the future or
> advertising.
>
> The only UK incident I've been able to find did not end up in a law suit
> because the restaurant apologised:
> http://www.dailymail.co.uk/news/article-2531093/I-feel-like-not-body-anymore-Vegetarians-outrage-going-Nandos-served-chicken-mistake.html
>
> I take John's point about the snail in the bottle: if meat has contaminated
> a vegetarian dish, for example, and it makes someone ill because they are so
> disgusted, how is that different to a snail? (After all, snails can be
> edible and some people eat snails - although not usually in ginger beer).
>
> I also take the point that food allergies are entirely different (as someone
> who is anaphylactic to nuts, who carries an Epipen at all times and who has
> had to inject herself and go to hospital reasonably often, although
> fortunately not for some years now). I'm still annoyed by the "may contain
> traces of nuts" disclaimer which is present on many foods here...there are
> almost never nuts in the product! If I took it seriously I wouldn't be able
> to eat any commercial product...
>
> Cheers, Katy
>
>
> Associate Professor Katy Barnett
>
> Melbourne Law School
>
> 185 Pelham Street
>
> University of Melbourne
>
> Carlton 3053 VIC AUSTRALIA
>
> Ph: + 61 3 9035 4699
>
>
>
> ________________________________
> From: Kleefeld, John [john.kleefeld@usask.ca]
> Sent: Thursday, January 22, 2015 6:51 AM
> To: Gerard Sadlier
> Cc: Andrew Tettenborn; Tsachi Keren-Paz; obligations@uwo.ca
> Subject: Re: UK litigation for consuming food contrary to belief-based
> dietary restrictions
>
> I seem to recall a 1932 case that might provide some helpful analysis.
> Something to do with opaque brown bottles that prevented you from inspecting
> their contents?
>
> :-)
>
> JCK
>
> On Jan 21, 2015, at 12:24 PM, Gerard Sadlier
> <gerard.sadlier@gmail.com<mailto:gerard.sadlier@gmail.com>> wrote:
>
> Andrew,
>
> I agree with most of that - and apologies if I had misunderstood what
> you were saying previously.
>
> The one point of difference I would have with you is that I do think
> that if there is a representation on a product that it was made in a
> certain way or does not contain a certain ingredient, a consumer ought
> to be entitled to rely on that both in contract and tort. There are
> cases, of which you will be aware of representations made to the world
> at large constituting terms of a contract, running from Carlill v
> Carbolic Smokeball to Bowerman v ABTA - and I recognize the limits of
> that principle but still think it applicable.
>
> I do not think that the consumer has to go to the manufacturer, as I
> read you to suggest and say "I rely on your representation", to make
> it binding either in tort or contract. That is just not how business
> is done in the modern world, it is not something that someone with a
> nut alergy say could do if they were buying groceries in their local
> supermarket. If they were to ask a staff member, the odds are that the
> staff member would not know the answer and would tell them to read the
> label. If they were being really helpful, the staff member might look
> at the label themselves.
>
> I'm sure that such customers do check the label of food, that they
> rely on it (given the gravity of the consequences that can insue for
> them) and that manufacturers know that there are customers that rely
> on information on labels in that way.
>
> Moreover, if I market my product as say glutin free, I must know that
> many of my customers will be coeliaks, so injury because my product is
> stuffed full of glutin is foreseeable.
>
> To me that is a clear case of negligence, physical harm, which is
> foreseeable, with a fair degree of proximity (if that's relevant)
> since the duty is only to the consumer of the food, not to an
> indeterminate number, with an assumption of responsibility e.g. the
> manufacturer takes responsibility (and I believe, without claiming any
> knowledge of UK food law is legally required to take responsibility
> for) the list of ingredients on the label. There is also a
> vulnerability on the part of consumers - who can hardly be expected to
> conduct tests on their food before eating and have no other way of
> verifying their food's composition.
>
> I agree with what you say on belief based food, except that as above I
> would argue that a representation would be sufficiently definite to
> form part of a contract if made on the packaging (in the same way as
> the representation on the sign "cosher butcher" would be sufficiently
> definite.
>
> Interesting point though.
>
> Kind regards
>
> Ger
>
> On 1/21/15, Andrew Tettenborn
> <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>> wrote:
> Ger,
>
> I agree (oddly enough) with a lot of what you say. In contract, _if
> there is a term that the food won't contain anything haram or against my
> beliefs_, I clearly ought to be able to sue: and I agree that trhere's a
> case for Jackson v Horizon Holidays on the basis that the object of the
> contract is to preserve my spiritual peace of mind. But it's the if that
> matters. Such a term shouldn't be simply implied: if I want food that's
> halal or kosher, then (unless perhaps I'm in a halal or kosher butcher's
> shop) I should have to make this quite clear to the seller.
>
> Tort is a bit more awkward. If I say to a supplier "I have an allergy
> against X: I need to know if this food contains X"; he says "it doesn't
> contain X" and I get sick, I absolutely take your point: obviously I can
> sue. But I think the onus should be on me to ask: I don't think a duty
> of care should arise automatically. Also, there's a difficulty if I say
> "My religion forbids me eating X: I need to know about whether this food
> contains X"; he says "No worries: no X"; I eat it and get sick. Here
> we're up against the "different danger" problem in Darby v National Trust.
>
> Best
>
> Andrew
>
>
> On 21/01/2015 17:45, Gerard Sadlier wrote:
> Andrew,
>
> If a seller represents that his food is free of whatever component is
> objectionable or has been prepared in a certain way, for example on
> the food's label or perhaps in certain kinds of advertizing which is
> more than a mere puff, and that representation is seriously meant and
> would be taken seriously by a reasonable person, that representation
> could (and should) very readily become a term of a contract between
> the seller and a buyer who purchased in reliance on that
> representation.
>
> I see no reason why in such a case damages should not be recoverable
> for breach of contract. Nor do I see any reason why damages should be
> in any way nominal. The example of alergies you give is a good one and
> will serve to prove my point.
>
> The Alergy Analogy
>
> If I had an alergy to nuts and purchased food based on the seller's
> representation that the food in question contained no nuts and became
> ill as a result, can it be said that I could not recover substantial
> damages for breach of contract from the seller, for say loss of
> earnings. It seems to me beside the point that the representation is
> made to the whole class of persons purchasing the food, that does not
> mean that the representation (made for example on the label) should
> not form part of the contract. Admittedly, if I had no alergy, I would
> suffer no loss and could therefore recover but nominal damages for
> breach.
>
> I think that liability in negligence could also be established, on
> proof that (i) persons with nut alergies were likely to purchase the
> product because of the statements that it did not contain nuts; (ii)
> that the seller knew they were likely to do so; and (iii) that knowing
> this, the seller did not take reasonable care to ensure their product
> was free of nuts.
>
> Take a stronger case. Suppose I went to a restaurant and enquired
> about the presence of nuts in my food before ordering. (I have a
> friend who does this.) If I were told that there were no nuts in such
> a dish and suffered injury because there were? Would I be denied a
> remedy purely because my friend paid for dinner? I think that to ask
> the question is to know the answer. The short point is that one is not
> in a position to examine the food's ingredients, to ensure that there
> are no nuts - one is not in a position to safeguard one's own
> interests.
>
> Belief Based Issues
>
> All this may appear far removed from belief based concerns regarding
> food.
>
> Once it is accepted that a seller is liable in contract for
> misstatements concerning their food, then it seems to me imaterial
> that the representation concerns one's beliefs, rather than one's
> alergies, as a matter of contract. The issues would be whether the
> representation should properly be understood as forming part of the
> contract (which might rule out certain ads) and whether loss could be
> shown.
>
> On the issue of damages, I do not see why damages for distress could
> not be awarded a la Jackson v Horizon Holidays. The reason one
> purchases hallal meat or cosher food is presumably to give one peace
> of mind and that peace of mind or compliance with what one's
> conscience dictates is part of what you pay for, just as enjoyment was
> what Jackson paid for as part of his holiday.
>
> Not so sure on negligence, perhaps it would depend on an assumption of
> responsibility?
>
> But, perhaps I'm missing something fairly fundamental? With apologies
> for the rambling response!
>
> Kind regards
>
> Ger
>
> On 1/21/15, Andrew Tettenborn
> <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>> wrote:
> I don't think there is, and I suspect the reason is understandable.
> There are strong arguments against imposing liability, whether under the
> Sale of Goods Act or in negligence.
>
> First, under the Sale of Goods Act, you can't generally sue if the
> reason you were injured is your own idiosyncrasy. Lots of people have
> allergies to lots of things, and food sellers know this: but this
> doesn't mean that every food seller in the kingdom must take steps to
> protect them. A straightforward instance is the (admittedly non-food)
> case of Griffiths v Peter Conway [1939] 1 All ER 685. Essentially you
> have to look out for yourself in such cases and ask specifically for
> something fit for your own needs. I see no reason why those with
> religious aversions should be treated any differently.
>
> Secondly, in negligence I suspect a similar doctrine applies to the one
> above: there's no more reason to let a person allergic to a particular
> kind of cloth (the situation in Griffiths) sue a manufacturer in
> negligence for not warning of it, than there is to allow her to sue the
> shop she bought her coat from. There's also another point in negligence:
> is this cognisable damage? After all, you rightly can't sue in
> negligence for mere distress, however carelessly caused (Hinz v Berry
> [1970] 2 QB 40): nor for a simple fear of contagion (Grieves v FT
> Everard [2008] 1 A.C. 281); nor for the unhappiness of having a child of
> the wrong hue (A v Health Authority [2012] NI 77). Again, it isn't
> apparent to me why mere personal disgust, however sincere and strongly
> felt, at the idea of having ingested pork, or shellfish, or meat, or
> whatever, shouldn't be treated in the same way: damnum sine injuria.
>
> Human rights: not being an expert human rights lawyer, I wouldn't know.
> If it is a breach of my right to freedom of religion that people owe me
> no duty not to offend my nicer scruples, then I suppose damages would be
> available under s.8 of the HRA. But is it? After all, no-one is stopping
> religious enthusiasts from practising whatever takes their fancy and
> applying whatever dietary rules they like. To say that the state must
> now force other private people to take care to help them do it and not
> to cause them to break taboos they have chosen to set up for themselves
> seems to me a rather drastic step.
>
> Bhamra: I've always regarded this as, if anything, a rather tendentious
> extension of negligence liability in favour of a rather undeserving
> claimant. Generally speaking if I am negligent in failing to guard
> against danger X and as a result you are injured, but through danger Y
> rather than X, you can't sue: Darby v National Trust [2001] EWCA Civ
> 189. It's a little hard to see why Bhamra doesn't infringe this rule:
> effectively it's saying there's a duty to guard against egg allergy
> (which wouldn't normally exist) because of an admittedly justified
> expectation in the people at the party, held for completely different
> religious reasons, that there won't be any eggs.
>
> Andrew
>
>
>
> On 21/01/2015 12:55, Tsachi Keren-Paz wrote:
> Dear list members,
>
> Is any of you familiar with English (or UK) decisions in which a
> private law remedy was awarded for serving food which contradicts
> belief-based dietary restrictions? I'm familiar with Bhamrav Dubb
> (which was discussed on this list few years back), but there, a
> personal injury followed. However, I haven't seen anything more to the
> point. These claims (usually also in a class litigation format) are
> quite common in other countries - a claim against McDonald for frying
> chips in non-vegetarian oil comes to mind. I recall a very good
> article by Doug Kysar from about 10 years ago on Federal Courts'
> restrictive approach to consumer claims in belief-based context, but
> would be grateful for other relevant references.
>
> Also, am I correct in thinking that in England, a third party who
> hasn't paid or is not a party to the contract would be left without a
> remedy? In Bhamra it was decided in the first instance
> (controversially, in my view) that the Contracts (Rights of Third
> Parties) Act 1999 does not apply, and this was not litigated in the
> CA; the third party could benefit neither from the Misrepresentation
> Act nor from the Consumer Protection from Unfair Trading Regulations
> 2008; and unless one takes at face value the CA in Bhamra [25 ] that
> '*In those circumstances he was certainly under a duty to take
> reasonable care not to serve dishes containing egg in order to avoid
> offending against Sikh religious principles'*a remedy in negligence
> would not exist as well. So it seems the third party is left without a
> remedy. Do I miss anything?
>
> Finally, for public law/HR enthusiasts, if indeed English law does not
> provide remedy to a third party, could this amount to a violation of
> freedom of religion and is there any possible remedy against the state?
>
> Many thanks
>
> Tsachi
>
>
> --
> Professor Tsachi Keren-Paz
> Research Director, School of Law
> Keele University
> Staffordshire ST5 5BG
> England
> Office: CBC 2.015
> Phone: 01782 734358
> Email:t.keren-paz@keele.ac.uk<mailto:paz@keele.ac.uk>
> http://www.keele.ac.uk/law/people/academicstaff/tsachikeren-paz/
> New book: Sex Trafficking: A Private Law Response (Routledge
> 2013)http://www.routledge.com/books/details/9780415583312/
> --
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
> Institute of International Shipping and Trade Law
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
> Fax 01792-295855 / (int) +44-1792-295855
>
>
>
> *Andrew Tettenborn*
> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>
> Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
> Ysgol y Gyfraith, Prifysgol Abertawe
> Adeilad Richard Price
> Parc Singleton
> ABERTAWE SA2 8PP
> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>
>
>
> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>
>
>
>
>
>
> ***
>
>
>
>
>
> --
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
> Institute of International Shipping and Trade Law
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
> Fax 01792-295855 / (int) +44-1792-295855
>
>
>
> *Andrew Tettenborn*
> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>
> Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
> Ysgol y Gyfraith, Prifysgol Abertawe
> Adeilad Richard Price
> Parc Singleton
> ABERTAWE SA2 8PP
> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>
>
>
> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>
>
>
>
>
>
> ***
>
>
>
>
>