Who and how do consumer advocates check?

For the Trudoviks and the tax authorities, the other inspectors remain "in the shadow." In the sense that we talk about them much less often than about the above-mentioned visitors. But now we will make an exception and consider the procedure for conducting inspections by the State Service of Ukraine on Food Safety and Consumer Protection (hereinafter - the State Consumer Protection Service) in terms of consumer protection.

Penalty for creating obstacles. Let's start with an interesting nuance. If the Gosprodpotrebsluzhba or the structural unit for the protection of the rights of consumers of the local government authorities comes to you with quality control of products and / or rules of trade and other services, but you will create obstacles for their officials in conducting the inspection, then in accordance with paragraph 8 of Part 1 Art. 23 of the Law No. 1023 you have a fine in the amount of from 1 to 10% of the cost of goods sold for the previous calendar month, but not less than 10 nmdg (170 UAH.).

And in the case of an unlawful act of the inspected person, law enforcement officers may come to the aid of consumer advocates. According to Art. 31 of Law No. 1023, they should provide officials of the executive authorities exercising consumer protection with assistance in the performance of their official duties and stop the illegal actions of natural persons impeding the fulfillment of the functions assigned to them.

Moratorium uneasy. An important nuance: the moratorium on inspections provided for by Law No. 1728 does not apply to the State Consumer Goods Protection Authority. The reason is that in List No. 1104, approved pursuant to this Law, the service and its territorial bodies are included in the list of authorities to which the moratorium does not apply. But at the same time, this does not concern all of the verification activities of the service, but only those indicated in the List. Among them is the state supervision (control) over compliance with consumer protection laws. The Law of Ukraine "On Temporary Features of the Implementation of State Supervision (Control) Measures in the Sphere of Economic Activity" dated November 3, 2016 No. 1728-VIII. The list of state supervision (control) bodies that are not covered by the Law of Ukraine "On temporary peculiarities of state supervision (control) in the sphere of economic activity" dated December 18, 2017 No. 1104. Outside the area of ​​the moratorium is also the state veterinary and sanitary control , state supervision (control) over compliance with sanitary legislation, safety and certain indicators of food quality, state supervision in the areas of quarantine and racial protection teny.

Powers of inspectors. As you understand, the State Consumer Food Consumer Service (and its territorial bodies) or the structural unit for the protection of consumer rights of a local government authority can verify compliance with consumer rights.

The supervisory authorities of the State Food Consumer Service in the field of consumer rights protection are fixed, in particular, in Art. 26 of the Law No. 1023. Thus, the State Foodstuffs Service has the right to:

1) to give to business entities binding instructions for the termination of violations of consumer rights;

2) verify compliance by business entities operating in the field of trade and services with the requirements of regulatory legal acts on product safety, rules of trade and provision of services;

At the same time, it can freely visit and inspect, in accordance with the legislation, any production, trading and warehouse premises of such entities.

In the event that, based on the results of such studies, sales of products of inadequate quality and / or falsified business entity reimburses the costs incurred.

4) to conduct control checks on the correctness of settlements with consumers for products sold, including food products, in accordance with the law;

5) to receive free of charge from business entities copies of the necessary documents characterizing the quality of products, raw materials, materials, components used for the production of these products;

6) prohibit business entities from selling to consumers:

- improperly labeled or unsuitable food products;

- counterfeit products;

7) sue consumer protection claims;

8) to transfer materials of checks on the actions of persons containing signs of a criminal offense to the pretrial investigation authorities;

9) to impose administrative penalties on perpetrators in cases stipulated by law;

10) to impose penalties on business entities in the sphere of trade and services, including restaurant management, in accordance with Art. 23 of Law No. 1023. The State Food and Consumer Service does this in accordance with the Procedure for imposing penalties for violating consumer protection laws, approved by the Cabinet of Ministers of Ukraine dated August 17, 2002, No. 1177.

From myself we will add that the State Food and Consumer Service in accordance with Part 4 of Art. 27 of the Law on Advertising is also authorized to impose fines for violations of legislation on advertising. However, it should be guided by the Order No. 693, the Law of Ukraine “On Advertising” of 03.07.96, No. 270/96-BP. The procedure for imposing fines for violating advertising legislation, approved by the Cabinet of Ministers of Ukraine dated May 26, 2004, No. 693.

In addition, the authorities of the service are fined for violating the legislation on measures to prevent and reduce the use of tobacco products and their harmful effects on public health. Such powers it gives Art. 20 of the Law No. 2899, in part 2 of which the punishable offenses are clearly defined. The Law of Ukraine “On Measures to Prevent and Reduce the Use of Tobacco Products and Their Harmful Impact on the Public Health” dated September 22, 2005 No. 2899-IV.

The powers of the State Consumer Services in the field of market surveillance. It is important to understand that the service is also authorized to exercise state market supervision in relation to a number of types of products (listed in paragraphs 23 to 44 of List No. 1069). The list of types of products in respect of which the bodies of state market supervision exercise state market supervision, approved by the Resolution of the Cabinet of Ministers of 12/28/2016, No. 1069.

Among them, in particular, electrical and electronic equipment, toys, shoes, televisions, air conditioners, vacuum cleaners, as well as some types of non-food products.

For which the technical regulations do not set special requirements to ensure their safety and for which there is no state market supervision by other bodies of state market supervision.

This is explained by the fact that Gosprodpotrebsobluba is one of the market surveillance authorities. In this regard, it is endowed with a number of powers in the sphere of such supervision. They are listed in Art. 11 of Law No. 2735. Among them, in particular, carrying out inspections of product characteristics, including sampling of products, ensuring their expertise (testing) and taking measures to bring to justice those responsible for violations of the requirements of the Law of Ukraine "On State Market supervision and control of non-food products "dated 02.12.2010, No. 2735-VI.

In addition, the authorities of the service are fined for violating the legislation on measures to prevent and reduce the use of tobacco products and their harmful effects on public health. Such powers it gives Art. 20 of the Law No. 2899, in part 2 of which the punishable offenses are clearly defined. The Law of Ukraine “On Measures to Prevent and Reduce the Use of Tobacco Products and Their Harmful Impact on the Public Health” dated September 22, 2005 No. 2899-IV.

The powers of the State Consumer Services in the field of market surveillance. It is important to understand that the service is also authorized to exercise state market supervision in relation to a number of types of products (listed in paragraphs 23 to 44 of List No. 1069). The list of types of products in respect of which the bodies of state market supervision exercise state market supervision, approved by the Resolution of the Cabinet of Ministers of 12/28/2016, No. 1069.

Among them, in particular, electrical and electronic equipment, toys, shoes, televisions, air conditioners, vacuum cleaners, as well as some types of non-food products.

For which the technical regulations do not set special requirements to ensure their safety and for which there is no state market supervision by other bodies of state market supervision.

This is explained by the fact that Gosprodpotrebsobluba is one of the market surveillance authorities. In this regard, it is endowed with a number of powers in the sphere of such supervision. They are listed in Art. 11 of Law No. 2735. Among them, in particular, carrying out inspections of product characteristics, including sampling of products, ensuring their expertise (testing) and taking measures to bring to justice those responsible for violations of the requirements of the Law of Ukraine "On State Market supervision and control of non-food products "dated 02.12.2010, No. 2735-VI.

How can you not recall the very substantial sanctions under Art. 44 of this Act. So, for example, the introduction of products that pose a serious risk to the turnover can be fraught with a fine in the amount of from 1500 to 3000 nmdg (from 25.5 to 51 thousand UAH.). And pay attention to the fact that fines can be applied both to persons who have entered products into circulation (manufacturer / importer), and to those who are “equated” with them. After all, according to Part 7 of Art. 8 of this Law, if the manufacturer of products cannot be identified by the market supervision authority, then the entity that introduced such products into circulation is each business entity in the supply chain of the relevant products for the period agreed upon with the market supervision authority, which did not provide documentation allowing the name and the location of the manufacturer or the person who supplied the business entity with these products.

How is the test. The inspections carried out by the State Foodstuffs Service are subject to the requirements of the Law of Ukraine “On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity” dated 05.04.2007, No. 877-V. Previously, their conduct was regulated by a separate Procedure, but it was canceled as inconsistent with Law No. 877. Accordingly, they can be both planned and unplanned.

The reason for conducting an unscheduled inspection can be one of the reasons given in Part 1 of Art. 6 of Law No. 877. Moreover, the most common among them is the appeal of a physical person (natural person) about a violation that caused damage to his (their) rights, legitimate interests, life or health, environment or national security, is questionable.

On the one hand, the action of the second sentence of par. 5 h. 1 tbsp. 6 (by which such a basis has been established) is suspended for the duration of the moratorium in accordance with the Law No. 1728. Moreover, p. 2 h. 1 tbsp. 3 of this Law establishes an almost similar basis for conducting an unscheduled inspection. But, on the other hand, the operation of Law No. 1728 does not apply to the State Consumer Food Consumer Service (at least in terms of inspections of compliance with consumer protection law) in connection with its inclusion in List No. 1104.

Nevertheless, the service continues to conduct most of its unscheduled inspections just by the appeal of the offended natural persons-consumers!

How will be tested. The answer to this question depends on the violation of consumer protection laws (or is under suspicion).

Note: when conducting an unscheduled inspection, only those questions are clarified, the need for verification of which became the basis for the verification. In the certificate (direction) for the inspection these issues must be indicated.

A business entity should be familiar with the grounds for conducting an unscheduled inspection with providing him with a copy of the relevant direction.

According to the results of the audit, they form an act (regardless of whether violations were discovered or not). If the inspectors still found violations, then on the basis of such an act you will be given an order to eliminate the violation. In this case, in itself, it does not provide for the application of sanctions.