Who Authorises Test Purchasing?

Selling certain goods to young people is illegal in the UK. Local authorities have responsibility for the enforcement of legislation relating to the sale of age-restricted products.

Listed below are examples of products whose sale is controlled by age restriction:

• Alcohol – You or your staff must not sell alcohol to any person under the age of 18 years. It is also an offence to buy alcohol if you are under 18 or to buy it on behalf of a person who is under 18 (Licensing Act 2003).
• Cigarettes, tobacco, shisha and other smoking-based products – It is an offence for you or your staff to sell cigarettes, tobacco, shisha or any smoking-based products including cigarette papers to a person under the age of 18. The law also applies to herbal based products which do not contain tobacco such as herbal shisha and herbal cigarettes (Children and Young Persons (Protection from Tobacco) Act 1991).
• E-cigarettes and vaping products – It is illegal to sell e-cigarettes including vaping liquids containing nicotine to any person below the age of 18.
• Fireworks / sparklers – You cannot sell fireworks and/or sparklers to anyone under the age of 18 (Fireworks Act 2003).
• Party poppers, caps, cracker snaps – You cannot sell party poppers, caps, cracker snaps, novelty matches, serpents and throw downs to anyone who you feel is under the age of 16 years.
• Dangerous chemicals, cigarette lighter fuel, glue and other intoxicating solvents – You must not sell or supply cigarette lighter fuel or any cigarette lighter refill canister containing butane, or any other substance containing butane, to any person under the age of 18 (The Cigarette Lighter Refill (Safety) Regulations 1999).
• Aerosol paint – You must not sell an aerosol paint container (a device which contains paint stored under pressure and which is designed to permit the release of paint as a spray) to anyone under 16.
• Acids – Under the the Offensive Weapons Act 2019, it is an offence to sell cleaning products containing acidic or other corrosive substances to a person under the age 18.
• DVDs, Blu-rays and computer games – It is illegal to sell, rent or supply a video work which can include video games, Blu-rays or DVDs, unless it has been given legal classification by the British Board of Film Classification to any person under the ages of 12, 15 and 18 years unless the material has been classified suitable for that particular age(Video Recordings Act 1984).
• Dangerous weapons – It is an offence for you to sell or supply an air weapon, crossbows, knives including knife blades, razor blades or any axe to a person under the age of 18 years.
• Lottery tickets and scratch cards – It is illegal to sell lottery tickets or scratch cards to a person under the age of 16. It is also illegal for members of staff under the age of 16 to sell lottery tickets or scratch cards (National Lottery etc Act 1993).
• Petrol – It is illegal to sell petrol to a person under the age of 16. No person under the age of 18 years should be left in sole charge of a petrol station.
• Bookmakers – It is an offence under the Gambling Act 2005 to invite, cause or permit a person under the age of 18 years to gamble.
• Sunbeds – It is an offence under the Sunbeds Regulations Act 2010 for a business to allow or invite a person under the age of 18 to use a sunbed.

Who authorises test purchasing in the UK?

Local councils authorise their trading standards officers (TSOs) to carry out test purchases of age-restricted items. Trading standards is an enforcement body with statutory functions, based within local government authorities.

Trading standards officers work for local councils advising on consumer law, investigating complaints, monitoring traders and, if all else fails, prosecuting traders who break the law. They use young people to conduct test purchases both online and at bricks and mortar premises to ensure retailers comply with the law in respect of age-restricted products, as listed above.

These tests are usually undertaken at premises where intelligence indicates that the retailer has either sold age-restricted products to a minor, or previously sold restricted products when tested by trading standards officers.

Tests can also be authorised for retailers where minors are known to have acquired age-restricted products through a variety of online sources or the retailer is in a ‘hotspot’ area, that is an area where retailers have been known to flout the age restriction laws in the past.

The intelligence used comes from a variety of sources such as consumer complaints, local police and other partners of the local council.

Prior to a test purchase, trading standards officers will visit premises and give advisory notes, posters and guidance in respect to sales of age-restricted products. One key focus of this advice is to recommend to traders that they require “proof of age” before making a sale rather than simply asking how old someone is or judging their age by appearance.

This step will form part of the retailer’s “due diligence and reasonable precautions” defence if a genuine mistake is made. Local councils work with retailers and the police to reduce the number of underage sales in their borough.

Test purchases are conducted to check:

• Compliance with the law.
• Age verification practices.

If the local council suspects that there is noncompliance with either the law or verification practices then trading standards will ask an underage volunteer to attempt to buy an age-restricted product.

They may be covertly observed by a trading standards officer or in some cases also by the police, or the “tester” may report back their experience of purchasing to the trading standards officer. If a retailer is subject to a test purchase, the local council will inform them of the result either at the time or in writing afterwards.

Test purchasing work is carried out with regard to the Age Restricted Products Code of Practice and the Age Restricted Products and Services Framework document, which are both issued by the government’s Better Regulation Delivery Office. These documents ensure fairness and consistency in test purchasing events.

The Home Office Code of Practice for Covert Surveillance and Property Interference (August 2018) states that “if the test purchaser is wearing recording equipment and is not authorised as a Covert Human Intelligence Source (CHIS), or an adult is observing, consideration should be given to granting a directed surveillance authorisation”. This authorisation is usually given by the local authority or by the police.

Who authorises test purchasing of alcohol?

When a local authority wishes to carry out a test purchase operation involving young people, especially on “on-licensed” premises, they should have regard to current practice and the principles of risk assessment. These are carried out in accordance with the local authorities’ own procedures in respect to health and safety.

Depending upon the outcome of any risk assessment, a decision may be made concerning the need, or otherwise, to have an officer(s) present within the premises with the young person at the time of the attempted purchase.

There may, of course, be occasions where the nature of the business premises precludes the presence of a trading standards officer, for example if the premises is too small to accommodate an officer without drawing undue attention to themselves.

If this is the case the trading standards officer must provide the young person with some means of communicating with them to ensure their safety, and it may be necessary to be able to provide a record of the purchase.

This may be, for example, by means of a mobile phone or some other form of covert equipment, which in these circumstances will be regarded as appropriate but not essential. Not all councils use covert equipment.

Types of “on-licensed” premises include but are not limited to:

• Public houses.
• Inns.
• Bars.
• Restaurants.
• Night clubs.
• Social clubs.
• Sports clubs and venues.

Types of “off-licensed” premises include but are not limited to:

• Off-licences.
• Supermarkets.
• Mini markets / small retailers.
• Online retailers.

When an underage sale occurs, it is a criminal offence which both the seller and business owner can be liable for, subject to any statutory defences. The Licensing Act 2003 sets out the range of offences, defences and penalties that relate to underage sales of alcohol.

Some examples of offences include but are not limited to:

• Unaccompanied children prohibited from certain premises.
• Sale of alcohol to children under 18 years.
• Allowing the sale of alcohol to children under 18 years.
• Persistently selling alcohol to children under 18 years.
• Sale of liqueur confectionery to children under 16 years.
• Purchase of alcohol by or on behalf of children under 18 years.
• Consumption of alcohol by children under 18 years.
• Delivering alcohol to children under 18 years.
• Sending a child under 18 years to obtain alcohol.
• Prohibition of unsupervised sales by children under 18 years.

In cases of illegal alcohol sales, the local council may instigate a licensing review of the alcohol premise’s licence, which may result in suspension or revocation of the licence. The prosecution process usually begins with an invitation to attend an interview under caution where the retailer must be legally represented.

The maximum penalty for most offences is a fine of £5,000 or up to six months’ imprisonment, or both. Should premises fail two test purchases in a three-month period then they could be prosecuted for “persistently serving alcohol to children” and, if taken to court, could face a suspension of alcohol sales for up to three months and/or an unlimited fine.

Police or trading standards can take the following actions when a member of staff sells alcohol to an underage person:

• Issue a penalty notice for disorder.
• Issue a formal caution.
• Prosecute the seller.
• Prosecute the owners of the business.
• Review the licence.

The underage person who purchases alcohol may also be prosecuted. The police have the power to confiscate alcohol from someone, no matter what their age, if they believe it has been drunk, or will be drunk, by someone under 18 in a public place.

As a retailer, selling age-restricted products to the wrong person will put your business at risk. If you fail a test purchasing visit by the local authority trading standards or police, you could lose your licence to sell alcohol. Lack of knowledge is not a defence under the 2003 Licensing Act, because as a licence holder it is expected that you have taken your role seriously enough to make yourself aware of the licence holder’s responsibilities under the Licensing Act.

Who authorises test purchasing of fireworks?

Sales of fireworks are regulated by local authority trading standards and this includes purchases made both online and at bricks and mortar premises. Test purchases are authorised and arranged by trading standards, in some circumstances in joint operations with the police.

The police can serve a fixed penalty notice of £80 on anyone under the age of 18 possessing a firework in a public place. A test purchase volunteer purchasing fireworks on behalf of a local authority would be exempt from the possession offence.

The penalty for committing an offence of supplying a category F2 or F3 firework to any person under 18 years or supplying a category F1 firework to any person under 16 years, is a fine of up to £5,000 and up to six months’ imprisonment. There is more information on firework categories, classifications and safety distances.

Who authorises test purchasing of cigarettes?

The sale of cigarettes is also regulated by local authority trading standards and they authorise and conduct test purchasing in retail outlets selling cigarettes such as but not limited to:

• Shops.
• Supermarkets.
• Public houses.
• Bars.
• Petrol stations.

They often target their test purchasing operations to high risk premises as identified by the Tobacco Control Survey. This survey identified that 79% of local authorities had carried out underage sales activities such as test purchasing during 2019/2020.

Trading standards officers had undertaken 1,068 tests from 78 councils; of those, 50% reported that cigarettes or tobacco products were sold to underage purchasers in at least one premises tested. 92% of all councils reported they had dealt with complaints and enquiries in relation to underage sales of cigarettes at premises.

Although it is illegal to supply cigarettes to young people under the age of 18, when questioned, 23% of regular young smokers under 18 years stated that they obtained their cigarettes from shops.

Retailers must display a clear sign where they sell cigarettes stating, “It is illegal to sell tobacco products to anyone under the age of 18”. If anyone sells cigarettes to any person under the age of 18 years, they could face a fine of up to £2,500.

Who authorises test purchasing of knives?

The age prohibition for the purchase of knives is not intended to apply to articles such as scissors, compasses, folding pocket knives with a blade of less than three inches (7.62cm), or razor blades permanently held in a cartridge or similar housing where less than 2mm of the blade is exposed.

For any other category of knife, the purchasing age restrictions apply to purchases made online and at bricks and mortar premises. Again, the local authority trading standards will arrange and authorise test purchasing of knives to ensure the age restrictions are being complied with.

As part of the Serious Violence Strategy, in April 2018 the Home Office pledged a fund to assist trading standards in knife enforcement work; these funds were released in November 2018. Eleven local authorities were identified to carry out an enhanced series of knife test purchases from local shops.

These local authorities included:

• Croydon.
• Tower Hamlets.
• Haringey.
• Southwark.
• Newham.
• Cardiff.
• Swansea.
• West Yorkshire Joint Services.
• Manchester.
• Birmingham.
• Liverpool.

The 2018/19 bricks and mortar testing used children under 18 years old, working in controlled conditions; 1,019 test purchases were attempted from the 11 local authority areas identified above, 121 sales were made and there was an 11.8% failure rate.

Croydon was also asked to carry out online test purchasing from online stores nationwide. A wide range of retailers were tested, from major nationals to independent retailers, sports shops, bush craft stores and household goods suppliers. Each received advance warning of the fact that a test purchase would take place. In total, 41 knives were sold to a 13-year-old child.

Of those 41 cases:

• 5 simple cautions were issued.
• 15 managers’ warnings were issued.
• 4 advice letters were issued.
• 17 prosecutions commenced.

The maximum penalty on summary conviction is six months’ imprisonment or a fine of £5,000 or both.

Who can complete an official test purchase?

Many large retailers and pub chains employ “mystery shopping” organisations to carry out test purchases in their branches to ensure that all employees are complying with the law and the company’s policies regarding the sale of restricted items to underage purchasers.

Organisations such as Camelot, who supply lotto terminals and scratch cards, also carry out test purchases to ensure that the retailers who they supply their terminals and scratch cards to are complying with the law. However, official test purchases are carried out by local authority trading standards officers who may be accompanied by the police in some circumstances.

When can police complete a test purchase?

The police carry out test purchasing across the country at a variety of establishments from independent shops to large supermarkets, and from licensed premises to online retailers. This is usually done as part of a joint operation with the local authority trading standards.

What is a proxy purchase?

Proxy purchasing is where an adult aged 18 or over buys any age-restricted items and then goes on to supply the items to a person aged under the age determined by law for that item. Although it is the person who buys or attempts to buy restricted items for a child under the regulation age who commits the offence, vendors have a duty of care under “the protection of children from harm” to prevent such sales from occurring.

Knowingly allowing proxy sales, or failing to take appropriate steps to prevent such sales from taking place, may constitute a failure to uphold the applicable licensing objectives and could be used as evidence to support a review of the premise’s licence, if applicable.

Can Licensing Officers do a test purchase?

It is trading standards who enforce the legislation which prohibits the supply of most age-restricted goods. Trading standards will maintain strong links with all partners including the council’s own Licensing and Community Safety teams and externally with the police and Her Majesty’s Revenue and Customs (HMRC).

What happens if you fail a test purchase?

The enforcing authority, usually the local authority trading standards officers, should ensure that they communicate effectively with the business in relation to any noncompliance, and with any individual who may be responsible for the noncompliance. In responding to a noncompliance, an enforcing authority’s primary focus will usually be on securing future compliance.

In most circumstances, this requires constructive dialogue with the business in order for both parties to understand the causes of the noncompliance and any changes that are needed for future compliance.

Each trading standards service has its own enforcement policy, which explains how they seek to ensure that the action they take is fair and proportionate. A copy of this can be requested from your local authority.

The main formal enforcement options include the following:

• Simple caution – This is a formal warning, which may be offered as an alternative to prosecution, where it is in the public interest to do so. There is no obligation on trading standards services to offer a caution, but it might be offered for relatively minor first-time offending.
• Compliance notices – In some cases, trading standards services can issue a notice requiring the business to take action or to stop doing something, without the need to apply to the courts for an order. These notices have different names and different conditions depending on the law they are made under. In general, there will be a deadline to comply with the notice. If a business fails to comply with a notice, this can lead to court action; if the business disagrees with the use of the notice, it usually has the opportunity to apply to the court or a tribunal to appeal against it. Compliance notices are available under a range of laws including those governing the sale of restricted products.
• Administrative penalties – In some cases, trading standards services can issue a penalty notice, in effect imposing a fine directly on a business without the need for court proceedings. Such notices are available under a range of legislation, including laws relating to underage sales of alcohol. The business can usually appeal to the court or a tribunal against the use of such a notice or against the level of penalty imposed.
• Enforcement orders – For a range of breaches, trading standards services can apply to the County Court or High Court for an enforcement order requiring the business to comply with the law. This may include the following consequences:
  – The order itself. A breach of the order is contempt of court, which carries a maximum penalty of a fine and two years’ imprisonment.
  – An order to take “enhanced consumer measures”, including changes to business processes and paying compensation to victims.
  – An order to pay the costs of the investigation and the court proceedings.
  – A requirement to publicise the order.
• Prosecution – Many breaches of trading standards law are criminal offences and can be prosecuted in the Magistrates’ Court or Crown Court. A successful prosecution may have a range of consequences, including the following:
  – The trader will have a criminal record.
  – A punishment or sentence. Trading standards offences can usually be punished with a fine, and in many cases the amount is unlimited. For the most serious cases imprisonment is an option, with maximum periods of up to two years for some trading standards offences.
  – An order to pay compensation to victims.
  – An order to pay the costs of the investigation and prosecution.
  – A “criminal behaviour order” restricting future conduct .
  – Disqualification as a company director (where the offence was connected with a company) .
  – Confiscation of assets and money under proceeds-of-crime legislation.
  – Forfeiture of any illegal or infringing goods and any equipment used in committing the offence.

Trading standards services have no direct powers to order you to stop trading. However, they can apply to the courts for orders, which may restrict your activities including having any licences revoked.

In conclusion

If you are a business, here are some simple steps you can take to help prevent illegal sales of age-restricted products. Following these guidelines may help you to satisfy the requirements of test purchasing and avoid any possibility of prosecution.

• Ask for ID – If you are in any doubt, ask for photo identification as proof of age from young customers as appropriate. A valid passport or photo driving licence are acceptable.
• Operate a “Challenge 25” policy – This means that you and your staff challenge every potential customer who looks under 25 and ask to see identification if they try to buy any age-restricted item. By doing this you will ensure you challenge people who are under 18 but look older.
• Train your staff – By ensuring all your staff receive regular training and refresher training they will always be alert to prospective underage purchasers. Don’t forget to record training in writing so you can prove that it has been done should you have a problem.
• Signage – Put up signs to remind staff and customers of the age restrictions. Sometimes a sign will help your staff reassure unhappy customers as to why they need to ask for ID.
• Till prompts – If you have a till scanning system, you can often add a till prompt to age-restricted products which will remind staff to ask for ID if required. If you do not have a scanner you can add a warning sticker to the product itself.
• Product placement – If possible, move age-restricted products to a position where customers have to ask for them rather than self-select.
• A refusals book – By recording in writing every time you refuse a sale to an underage customer will allow you to check your staff are taking their responsibilities seriously and help you prove you are running a responsible business.
• Collect from a locker – Age-restricted products should not be delivered to self-service lockers, as it would affect any due diligence defence.

Trading standards officers can offer compliance advice to help businesses avoid illegal sales, and some boroughs have introduced local schemes to support responsible retailing. If you need assistance, contact your local council’s trading standards office.