Opinion Number. 432

Subject

TRADE DESCRIPTION WHETHER INCLUDES GRADE MARK : WHETHER GOODS INTENDED FOR EXPORT MAY BE GRADE MARKED

Key Legislation

COMMERCE (TRADE DESCRIPTIONS) ACT 1905, ss. 3. 14

Date
Client
The Comptroller-General of Customs

The following memorandum has been referred by the Comptroller-General of Customs to me for advice:

In regard to the question that has been raised as to the Department's power to grade and mark butter, cheese and carcase meat as set out in Part V of the Commerce Act Regulations, it is presumed that there is no doubt as to the authority given by the Act for the Department's officers to grade and mark these goods in the manner prescribed.

But hitherto, as far as the Regulations are concerned, it has been assumed that the power to grade and mark these goods was given under section 14 of the Act, and that the goods need not be released from Customs control until the officers have marked them in manner prescribed.

But in view of the fact that the question has been raised as to the Department's power (as the Regulations at present stand) to prohibit the export of butter not graded and marked in accordance with Part V of the Regulations, advice is desired as to whether it is considered necessary to add to Regulation 10 the words 'and Part V'.

It would then read as follows:

The exportation of the goods enumerated in the next succeeding regulation is prohibited unless there is applied to such goods a trade description in accordance with this part'AND PART V.

Regulation 10 is made under section 11 of the Act.

Section 14 of the Commerce (Trade Descriptions) Act 1905 provides that any goods intended for export which have been inspected in pursuance of this Act may in manner prescribed be marked with the prescribed trade description.

The words 'trade description' as defined by section 3 of the Act include, inter alia, a statement as to the class or grade of the goods.

A grade mark is therefore a trade description within the Act.

I am of opinion that under section 14 of the Act there is power to provide for the marking of the goods by an officer with the prescribed grade mark.

I think however that it would be desirable to amend regulation 10 by adding the words 'and Part V to it.

[Vol. 9, p. 241]