The Pharmaceutical Journal
Vol 278 No 7444 insert
24 March 2007

This article
Reprint   Photocopy

PDF 80K, Acrobat Reader

The law on sales in pharmacies

Valerie Toon and Kevin Smith give an overview of the law behind customer returns and sending goods back to suppliers

Retail pharmacy summary

Sale of goods legislation in England and Wales provides consumers (we will call them customers) with certain statutory rights when they purchase goods, and “goods” means all items sold in pharmacies, including over-the-counter medicines. The law incorporates certain terms into all sales of goods to customers even where such issues are not discussed at the point of sale.

Implied sale terms

All goods sold to customers must be of satisfactory quality, taking into account their price and all other relevant circumstances. They must also be fit for the purpose for which they are commonly supplied and be safe, durable and free from minor defects. This does not mean everything sold in a pharmacy must be perfect, but it does require a higher standard for new and full price goods while allowing for sale at reduced prices of older, damaged or end of range stock. This may not apply in the case of medicines where safety would, of course, be an issue.

Furthermore, goods sold by reference to a description must correspond to that description and if the sale of goods is by sample, the goods must conform to the sample.

Customer remedies

Generally speaking, goods sold to a customer that do not conform to the requirements set out above, give the customer the right to damages which, in most cases, will amount to a refund or alternatively to request either a replacement or (in some cases) a repair. Usually the right to repair will not be relevant to goods sold in a pharmacy, except perhaps to some non-consumable items or medical devices. It is, however, worth noting that certain of these rights might not apply in some circumstances, such as where a complaint relating to an OTC medicine is only made after the medicine’s expiry date. However, if the pharmacy is satisfied that the goods were defective at the time of sale it would be wise to take advice before refusing a refund or replacement.

Customers do not have a statutory right to a refund if they simply change their minds about a purchase, although if the pharmacy agrees at the time of sale that they will accept a return, it will be obliged to honour that promise. By way of example this may apply if the item purchased was intended as a gift and the customer asks to return it if it does not find favour. Some high street retailers offer refunds as a matter of commercial practice to keep customers happy, but they are not legally obliged to do so.

A word of warning: there is no statutory obligation on someone seeking a return and refund to be able to produce a till receipt. If a dispute about where goods were purchased ever came to court it would be decided on the balance of probabilities taking into account all evidence produced (which may include oral evidence from the claimant). However, in practice many retailers do not accept return and refund in the absence of a receipt or other good evidence of purchase.

To avoid any confusion in the minds of customers, pharmacies may choose to display notices indicating that they will not accept any returns from customers unless the goods are faulty, but, importantly, such a notice should stipulate that the pharmacy does not seek to exclude a customer’s statutory rights.

Suppliers

For the most part pharmacies are retailing goods purchased from wholesale suppliers, and will want the ability to return defective goods to the wholesaler. In this respect it is important to bear in mind that although the legislation relating to implied terms also applies to wholesale business to business arrangements, the wholesaler can exclude these terms simply by inserting a clause into its terms of business to that effect. Such exclusion will carry the force of law unless a court considers it unreasonable in all the circumstances — and to find that out would mean the unpalatable prospect of court proceedings for the pharmacy.

In practice, this means that pharmacies should check wholesalers’ terms and returns policies, and ensure that the wholesaler fully accepts the obligation to accept returns where the pharmacy has had to replace a product for a customer. Wholesalers often require their pharmacy customers to check deliveries and notify obvious defects or shortages within a tight timeframe but it is important that limits for notifying defects do not apply where the defect is not apparent until the goods reach the customer.

Injury

To end on a point of good news for pharmacy it is worth mentioning that special laws in England apply where goods cause death or injury. Such laws put the manufacturer firmly on the hook for the personal injuries sustained, and there can be no exclusions in favour of the manufacturer in those circumstances.

The law relating to sale of goods in Scotland will be covered in a future article.