Trade Advice Document
Trading advice from several sources is available to help businesses comply with the law.
The Health and Safety Executive website has advice on:
The Chartered Trading Standards Institute provides advice on a number of topics:
Video recordings and games for sale and hire
In the guide
Understand the labelling and age of sale requirements for the supply, hire or exchange of all videos and games
This guidance is for England, Scotland & Wales
The Video Recordings Act 1984 (which was repealed and revived by the Video Recordings Act 2010) regulates the sale, hire, exchange and loan of all video works - including video games - on DVD, Blu-ray or any other device capable of storing data electronically that are made available to the public, unless the supply or the video work is 'exempt'. The Video Recordings Act 1984 sets out a number of criminal offences.
The British Board of Film Classification (BBFC) is responsible for classifying video works. With certain minor exceptions the Video Standards Council (VSC) is responsible for classifying video games.
Retailers must take note of and comply with all legislation applicable to the sale, hire, exchange and loan of video works and games to avoid committing criminal offences; a list of other relevant legislation enforced by trading standards is included in this guide.
The BBFC is designated as the authority responsible for classifying works according to the material they contain (criminal behaviour, sex, violence, bad language, drugs, etc) and for issuing or refusing classification certificates. The classification certificate will include one of the following statements:
- the video work is suitable for general viewing and unrestricted supply
- the video work is suitable for viewing by people of a specified age (not more than 18) and must not be supplied to anyone under the specified age
- the video work is suitable for viewing by people of a specified age (not more than 18) and must not be supplied to anyone under the specified age; the video recording containing the video work can only be supplied in a licensed sex shop
The VSC (using the name Games Rating Authority) is the designated authority responsible for classifying video games using the Pan-European Game Information (PEGI) system. Video games are classified at 12, 16 and 18 according to the content of the video game. Video games receiving a 3 or 7 rating are advisory only. The BBFC retains responsibility for classifying video games where the content warrants an R18 classification (because of more extreme sexual content) or the video game is a small game contained on a disc that is predominantly a film.
Video works and video games are exempt from classification if their purpose is to inform, educate or instruct, or if they are about sport, religion or music. However, their content is taken into consideration when deciding if classification is required - for example, if a video work or a video game includes violence, sexual messages, offensive or discriminatory behaviour, alcohol, tobacco or illegal drugs, it will not be exempt from classification. A further exemption condition for video games is that they must be verified as being suitable for viewing by under 12s. Exempted supplies of video works include those that are not related to a business activity, not for financial gain and those that are private recordings of an event or occasion - such as a wedding video - made for those people connected with it.
The classification categories for video works are as follows:
|Symbol||Classification||Only to be sold to|
|parental guidance. General viewing but some scenes may be unsuitable for young children||unrestricted|
|suitable only for persons aged 12 and over||12 and over|
|suitable only for persons aged 15 and over||15 and over|
|suitable only for persons aged 18 and over||18 and over|
|restricted 18. To be supplied only in licensed sex shops and to persons aged 18 and over||18 and over in a licensed sex shop|
It is illegal for a retailer to sell a video recording with a BBFC classification rating of 12, 15 or 18 to a person who has not reached that age. For a full list of offences under the Video Recordings Act 1984 see the 'Penalties' section of this guide.
The classification categories for video games are as follows:
|Symbol||Classification||Only to be sold to|
|suitable for all age groups||unrestricted|
|normally rated as a 3 but some content may not be suitable for younger children||unrestricted|
|slightly more graphic violence and mild bad language. Suitable for persons aged 12 and over||12 and over|
|graphic violence, bad language, concept of use of tobacco, drugs and criminal activities. Suitable for persons aged 16 and over||16 and over|
|depictions of gross violence. Suitable for persons aged 18 and over||18 and over|
The PEGI rating system also includes descriptor icons on the back of the packaging showing the reasons why the content of the video game has received the particular age rating:
|contains bad language|
|depicts or contains material which may encourage discrimination|
|depicts or refers to the use of drugs|
|may frighten or scare young children|
|teaches or encourages gambling|
|can be played online|
|has sexual references or depicts nudity and/or sexual behaviour|
|contains depictions of violence|
It is illegal for a retailer to sell a video game with a PEGI age rating of 12, 16 or 18 to a person who has not reached that age. For a full list of offences under the Video Recordings Act 1984 see the 'Penalties' section of this guide.
The Video Recordings (Labelling) Regulations 2012 specify the labelling requirements for video recordings and video games.
The classification symbol, descriptor icon (for video games), unique title (including the registered number) and explanatory statement (for video recordings), where required by the Regulations, must be clearly legible, indelible and not hidden or obscured. The Regulations set out where the classification symbol and descriptor icon labels and markings must be shown on the packaging for video recordings and video games and on the disc or other electronic device.
It is illegal for a retailer to supply or offer to supply a video recording that does not comply with labelling requirements. For a full list of offences under the Video Recordings Act 1984 see the 'Penalties' section of this guide.
There are defences available if you are charged with offences under the Video Recordings Act 1984. Offences under section 11 of the Act are most relevant for the content of this guide and as such the defences are given below.
You have the defence that you neither knew, nor had reasonable grounds to believe, that:
- the classification certificate contained the statement in relation to the specified age
- the person concerned had not reached the specified age
You also have the defence that you had reasonable grounds to believe that the supply was, or would have been, an exempted supply as defined by legislation. If video recordings are sold by retail, they will not be exempted supplies.
There is a general defence to offences under the Video Recordings Act 1984, namely that you took all reasonable precautions and exercised all due diligence to avoid committing an offence. Therefore it is recommended that you have systems in place to avoid committing an offence; these systems should be regularly checked and updated. See the 'Keeping within the law' section of this guide for more information. As well as this defence, it also needs to be shown that the offence was due to the act or default of another person, other than the accused.
It is the trader's responsibility to keep within the law and to have systems in place that will act as a 'due diligence' defence.
In order to keep within the law and therefore satisfy the legal defences, you should introduce an age verification policy and have effective systems to prevent an underage sale. These systems should be regularly monitored and updated as necessary to identify and put right any problems or weaknesses, or to keep pace with any advances in technology.
Key best practice features of an effective system include:
AGE VERIFICATION CHECKS
Always ask young people to produce proof of their age. The Chartered Trading Standards Institute, the Home Office, the Scottish government, the Association of Chief Police Officers and Police Scotland support the national Proof of Age Standards Scheme (PASS) (opens in a new window), which includes a number of card issuers. You can be confident that a card issued under the scheme and bearing the PASS hologram is an acceptable proof of age. The Scottish government also endorses the Young Scot (opens in a new window) card. Photo driving licences and passports are also acceptable as proof of age. A passport or photocard driving licence can also be accepted, but make sure the card matches the person using it and that the date of birth shows they are over 18. Military identification cards can be used as proof of age but, as with other forms of identification, make sure the photo matches the person presenting the card and check the date of birth. Be aware that military identification cards can be held by 16 and 17-year-old service people.
Some young people may present false identification cards so it is advisable to also check the look and feel of a card. For example, the PASS hologram should be an integral part of a PASS card and not an add-on.
Posters showing age limits should be displayed and contain a statement regarding the refusal of such sales. This would then deter potential purchasers and act as a reminder to members of staff.
If the person cannot prove they are over 18, or if you are in any doubt, then the sale should be refused.
Please see the Home Office False ID guidance (opens in a new window) for more information.
Always observe any age restrictions on the video recording and make sure your staff do so too. It is advised that the legislation be brought to the attention of all staff via regular training. It is important that you can prove that your staff have understood what is required of them under the legislation. This can be done by keeping a record of the training and asking the member of staff to sign to say that they have understood it. These records should then be checked and signed on a regular basis by management or the owner.
MAINTAIN A REFUSALS LOG
All refusals should be recorded on a refusals sales sheet or a refusals book. Some tills have a refusals system built in. Maintaining a refusals log will strengthen any defence you may have. Logs should be checked by the manager / owner to ensure that all members of staff are using them.
A specimen refusals log is attached.
Some tills have a refusals system built in. If using a till-based system, you should ensure that refusals can be retrieved at a later date. You should also be aware that some refusals are made before a product is scanned.
Check your current and new stock and ensure that all video recordings have been classified.
Check your current and new stock for labelling. Make sure that the discs, games, etc - as well as the cases - are correctly marked with the appropriate symbol, icon (where appropriate) and explanatory note.
Always buy from a known and reputable supplier and keep your transaction documentation.
Check the quality of the printing on the disc label and the case sleeve; poor quality printing can indicate that the products may be counterfeit.
Some producers use holograms on their products as a way of showing they are genuine. Check that any holograms on the products are working and not a copy.
The Video Recordings Act 1984 sets out a number of criminal offences. The maximum penalties are listed below, along with the relevant offences.
A fine and two years' imprisonment:
- section 9. Supplying or offering to supply a video recording of a video work that has not been issued with a classification certificate, unless it is an exempt work or supply
- section 10. Possessing a video recording of an unclassified work for the purpose of supply, unless it is an exempt work or supply
A fine and six months' imprisonment:
- section 11. Supplying a video recording to a person who has not attained the age specified in the classification certificate, unless the supply is, or would be if it took place, an exempted supply
- section 12. Supplying or offering to supply a video recording other than in a licensed sex shop
- section 14. Supplying or offering to supply a video recording containing a false indication as to classification, unless the supply is, or would be if it took place, an exempted supply
- section 13. Supplying or offering to supply a video recording that does not comply with labelling requirements, unless the supply is, or would be if it took place, an exempted supply
TRADE MARKS ACT 1994
Many traders have registered their trade mark and incorporated it on to the disc or game and the case or any other thing on or in which the recording is kept. It may also appear within the content so that it can be seen on viewing. If an unauthorised copy is made, found in possession for sale or hire, or so sold or hired, and it has a copy of the registered trade mark, an offence is committed that can result in a prosecution, imprisonment of up to 10 years and an unlimited fine. In addition all offending stock is liable for forfeiture and destruction.
COPYRIGHT, DESIGNS AND PATENTS ACT 1988
It is an offence to make an infringing copy of a copyrighted work. Even if no trade marks are displayed a person may still be committing an offence. Sentences can be imprisonment of up to 10 years and an unlimited fine.
Both of these laws are covered in 'Intellectual property', which also includes links to more detailed information from the Intellectual Property Office.
- Video Recordings Act 1984 (opens in a new window)
- Copyright, Designs and Patents Act 1988 (opens in a new window)
- Trade Marks Act 1994 (opens in a new window)
- Digital Economy Act 2010 (opens in a new window)
- Video Recordings Act 2010 (opens in a new window)
- Video Recordings (Labelling) Regulations 2012 (opens in a new window)
- Video Recordings Act 1984 (Exempted Video Works) Regulations 2014 (opens in a new window)
Last reviewed / updated: October 2017
This information is intended for guidance; only the courts can give an authoritative interpretation of the law.
The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on amendments to UK legislation can be found on each link's 'More Resources' tab; amendments to EU legislation are usually incorporated into the text.
© 2017 itsa Ltd.
The county council is not responsible for this information.