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Customs Act - Customs (Trade Descriptions) Regulations 2008

LAWS OF TUVALU

CUSTOMS (TRADE DESCRIPTIONS) REGULATIONS 2008

Arrangement of Sections

Regulation

PART I PRELIMINARY
1 Short title
2 Commencement
3 Interpretation

PART II—TRADE DESCRIPTIONS ON IMPORTED GOODS
4 Prohibition of imports not bearing trade description
5 Trade description — general requirements
6 Imported goods found in Tuvalu without trade description
7 Imported goods found in Tuvalu with false trade description
8 Importation of falsely marked goods
9 Forfeiture of falsely marked goods

PART III MISCELLANEOUS
10 Inspection of imports
11 Analysts
12 Certificates of analysts
13 Penalties

CUSTOMS ACT

CUSTOMS (TRADE DESCRIPTIONS) REGULATIONS 2008

LN 4 of 2008

Commencement [1 September 2008]

PART I PRELIMINARY

1 Short title

These regulations may be cited as the Customs (Trade Descriptions) Regulations 2008.

2 Commencement

These regulations shall commence on a date to be appointed by the Minister by notice published in the Gazette.

3 Interpretation

(1) In these regulations, unless the contrary intention appears:

"analyst" means a person appointed under subregulation 11(1).

"article" includes quantity of a substance.

"brand" includes any mark, device, name, word, letter, numeral or symbol and any combination consisting of two or more of those things.

"coverings" means all the principal coverings in which goods are contained, and in which such goods are usually sold wholesale or retail.

"drug" means any substance used as a medicine or in the composition or preparation of a medicine.

"False trade description" means a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, which makes the description false or likely to mislead in a material respect.

"fertilizer" includes any substance intended for or commonly used to fertilize the soil, other than:

(a) animal or vegetable manure; or

(b) crude material for the manufacture of fertilizer.

"fibre" means wool, hair, silk, cotton, linen, cashmere, mohair or the hair of the alpaca, the camel, the llama or the vicuna, and includes any other fibrous material, whether natural or artificial.

"food and drink" include every article used as food or drink by man, other than drugs and water.

"hair" means the hair of animals other than swine.

"package" includes:

(a) a container, wrapper or other thing in which an article is packed or two or more articles are packed for sale as a single item;

(b) a holder to which an article is attached for the purpose of sale; and

(c) a band that is fixed round an article or articles as part of the preparation of that article or those articles for sale.

"plants" includes every part of any plant (except the seed) intended for planting or purposes of propagation.

"shoes" means boots, shoes, sandals or other footwear but does not include socks, stockings or other hose.

"textile products" means:

(a) woven, knitted or felted materials manufactured from fibre; and

(b) tops, yarns, threads and lace.

"Trade description", in relation to any goods, means any description, statement, indication, or suggestion, direct or indirect:

(a) as to the nature, number, quantity, quality, purity, class, grade, measure, gauge, size, or weight of the goods; or

(b) as to the country or place in or at which the goods were made or produced; or

(c) as to the manufacturer or producer of the goods or the person by whom they were selected, packed, or in any way prepared for the market; or

(d) as to the mode of manufacturing, producing, selecting, packing, or otherwise preparing the goods; or

(e) as to the material or ingredients of which the goods are composed, or from which they are derived; or

(f) as to the goods being the subject of an existing patent, privilege, or copyright;

and includes a Customs entry relating to goods; and any mark which according to the custom of the trade or common repute is commonly taken to be an indication of any of the above matters shall be deemed to be a trade description within the meaning of these regulations.

"wool" means the natural fibre from the fleece of any variety of domestic sheep or lamb.

(2) For the purpose of these regulations:

(a) where two or more articles of the same kind are packed together for sale as a single article, they shall be deemed to be a single article; and

(b) where an article is, or two or more articles of the same kind are, packed together with an article of a different kind or with articles of a different kind or different kinds for sale as a single article the first-mentioned article or articles shall be deemed to be a single article.

(3) For the purposes of these regulations, where an article is packed in a manner in which it could be sold as a single item, it shall be deemed to be packed for sale as a single item unless the contrary is shown.

(4) A reference in these regulations to the weight or measure of an article shall be read as a reference to the weight or measure of the article exclusive of the weight or measure of the package in which it is packed.

(5) A reference in these regulations to the measure of an article shall, in the case of an article of a kind that is ordinarily sold by number, be read as a reference to the quantity of that article expressed as a number.

(6) For the purposes of these regulations, words or particulars that are marked on a label attached to a package or to an article contained in a package shall be deemed to be marked on the package.

(7) In these regulations, unless the contrary intention appears:

(a) a reference to a package containing an article or to a package in which an article is contained or packed includes a reference to a package to which an article is attached or round which an article is wound; and

(b) a reference to an article that is contained or packed in a package includes a reference to an article that is attached to, or wound round, a package.

PART II—TRADE DESCRIPTIONS ON IMPORTED GOODS

4 Prohibition of imports not bearing trade description

The importation of the following goods is prohibited unless there is applied to those goods a trade description in accordance with these regulations:

(a) articles used for food or drink by man, or from which food or drink for use by man is manufactured or prepared;

(b) medicines or medicinal preparations for internal or external use;

(c) fertilizer;

(d) agricultural seeds;

(e) plants;

(f) textile products and articles of apparel including shoes;

(h) jewellery;

(i) brushware;

(j) china, porcelain, earthenware and enamelled hollowware of the following kinds:

(i) articles of a description commonly used in connexion with the serving of food or drink for man; and

(ii) kitchenware and kitchen utensils;

(k) electrical appliances, apparatus and accessories, including electric incandescent lamps;

(l) powder puffs;

(m) toys;

(n) cigars, cigarettes, manufactured tobacco, cigarette papers and cigarette tubes;

(o) Portland cement;

(p) sanitary and lavatory articles of earthenware, fireclay, vitreous china or similar substances or materials;

(q) wall, hearth and floor tiles;

(r) watches and clocks and movements for watches and clocks.

5 Trade description — general requirements

The trade description to be applied in accordance with these regulations is a trade description that complies with the following provisions:

(a) subject to these regulations, the trade description, in the case of goods other than goods that are imported as pre-packed articles, shall be in the form of a principal label or brand affixed in a prominent position and in

as permanent a manner as practicable to the goods or, if affixture to the goods is impracticable, to the coverings containing the goods;

(b) subject to these regulations, the trade description, in the case of goods imported as pre-packed articles, shall be marked on the packages in which the goods are packed;

(c) the trade description shall contain, in prominent and legible characters:

(i) the name of the country in which the goods were made or produced; and

(ii) in the case of goods specified in paragraph 4 (1) (a), (b), (c), (d), (e), (f), (h), (i), (k) or (n) — a true description of the goods;

(d) Where a weight or quantity is set out in the trade description, the trade description shall state whether the weight or quantity so set out is gross or net;

(e) any matter included on the label, brand or package that is in addition to the matter required to be so included by these regulations shall not be such as will, by illustration, by wording or by size of lettering tend to contradict or obscure the matters required to be so included; and

(f) the trade description must be in the English language.

6 Imported goods found in Tuvalu without trade description

All imported goods to which a trade description is by this regulations required to be applied, and which are found in Tuvalu without the trade description, shall until the contrary is proved be deemed, subject to the regulations, to have been imported in contravention of the regulations.

7 Imported goods found in Tuvalu with false trade description

All imported goods found in Tuvalu which bear a false trade description shall, until the contrary is proved, be deemed to have been imported in contravention of these regulations.

8 Importation of falsely marked goods

(1) A person shall not import any goods to which a false trade description is applied.

Penalty: $500.

(2) In a prosecution for an offence against subsection (1) it is a defence if the defendant proves that he did not intentionally import the goods in contravention of that subsection.

9 Forfeiture of falsely marked goods

(1) Goods to which a false trade description is applied are prohibited to be imported.

(2) Subject to subsection (3), goods imported in contravention of subsection (1) are forfeited to the Crown.

(3) If the Director of Customs is satisfied that the contravention was not intentional or reckless:

(a) the Director of Customs may, by notice in writing given to the owner or importer of the goods concerned, require the owner or importer to correct the false trade description within a period specified in the notice; and

(b) if the owner or importer complies with the notice, subsection (2) does not apply in respect of the goods.

PART III MISCELLANEOUS

10 Inspection of imports

(1) An officer may inspect and examine all goods which are imported to which a trade description is applied, goods specified in regulation 4 and goods that an officer has reasonable grounds to believe are goods to which a trade description is required to be applied.

(2) The officer may where practicable take samples of any goods inspected by him pursuant to this section for the purposes of analysis.

(3) For the purposes of this section an officer may enter any ship, wharf or place, and may open any packages, and may do all things necessary to enable him to carry out his powers and duties under this section.

11 Analysts

(1) The Minister may appoint persons who have the necessary qualifications to be analysts for the purposes of these regulations.

(2) An analyst may analyse or examine samples of goods that are taken by an officer under regulation 10(2) of these regulations.

12 Certificates of analysts

(1) In proceedings under the Customs Act or these regulations in relation to importation of prohibited or restricted imports, a certificate given by an analyst as to the results of an examination of those goods, or of an analysis of a sample of those prescribed goods, is evidence of the matters stated in the certificate.

(2) Judicial notice shall be taken of the signature of an analyst appearing on a certificate referred to in subregulation (1) and of the fact that the person by whom the certificate purports to have been signed is an analyst.

13 Penalties

Any person who contravenes, or fails to comply with, any provision of these regulations shall be guilty of an offence.

Penalty: Forty dollars.