10.2 Weights and Measures

Correct weights and measures have been important to consumers and businesses throughout history. They have formed the basis for fair trading, and taxation, for centuries. The oldest known weights are nearly 10,000 years old. The first recorded trade weighing was carried out in the Indus civilisation in about 3,000BC. Modern concepts of standards in weights and measures can be traced back to around 960AD when King Edgar the Peaceful of England decreed that all measures must agree with standards kept in London and Winchester. The need for consistency from both consumers and traders led to the first imperial Weights and Measures Act coming into force in 1826.

The New Zealand Weights and Measures Act 1987 defines New Zealand's system of metric weights and measures, and prescribes their use in the market place.

History of the Weights and Measures Act

The current Weights and Measures Act replaced the Weights and Measures Act 1925. In the speech introducing the Weights and Measures Bill to Parliament on 10 July 1986, the then Minister of Labour noted that the Act's principal purpose was to recognise the primacy of metric rather than imperial measure; and to consolidate the nine amendments to the 1925 Act. The Act was considered well overdue for review and consolidation and had also had two sets of supporting regulations since its publication in 1925.

The Act provides the means by which consumers and businesses are assured of the correct quantity of goods sold by weight, measure or number. It covers the technical aspects and standards relating to the measurement systems and equipment used when goods are sold. This is important for consumers and businesses domestically and underpins the credibility of goods traded internationally.

The Act is aimed at ensuring that goods sold by weight, measure or number are traded fairly and in accordance with internationally recognised weighing and measuring principles and infrastructure.

The Act also sets out specific trader obligations for the protection of consumers, and for fair competition with other businesses. It defines what a trader must ensure has been done when goods are sold by weight, measure or number. The Weights and Measures Act references international standards which form the basis of specific trader obligations. By its very nature, the Act is a prescriptive piece of legislation. Worldwide weights and measures law is standalone legislation, and it tends to be prescriptive.

The Act includes a consumer protection component by regulating against traders selling goods less than their stated weight, measure or number and against incorrectly stated weight, measure or number⁵⁹. However, the Weights and Measures Act is largely about trade measurement infrastructure consisting of the provision of physical standards, measurement practice and enforcement. Consumers do not need to be aware of the exact details of the Act itself, as long as the end result is that they receive correct measure, therefore providing confidence to all parties.

The Weights and Measures Act tends to be given operational effect through the Weights and Measures Regulations 1999, and these regulations were reviewed and amended in 2009.
New Zealand’s Weights and Measures Act is regarded as world leading. Many of the elements of the Act which were considered to have been over prescriptive have been updated – for example certain products such as milk and cheese are no longer required to be sold in predefined measures. The New Zealand Act has fewer prescriptive details than its Australian or United Kingdom counterparts.

Ongoing relevance

The risks addressed by the Weights and Measures Act are just as relevant today as they have been in the past. Correct weights and measures are an important component of a well functioning market place.

Consumers need assurance that the goods they are purchasing are of accurate weight or measure so that they know they are getting what they pay for and can transact with confidence. This applies to large purchases such as firewood, concrete or garden landscaping material, as well as everyday products such as milk, meat and petrol.

Businesses also need to be know they are dealing with accurate weights or measures so they can be assured they are competing on a level playing field and have the ability to trade internationally without encountering restrictions due to differing international standards. Accurate measurements contribute to business efficiency and production of goods that can be sold competitively and fairly. Poor measurement can lead to inefficiencies and incorrect costs for both consumers and businesses.

The Weights and Measures Act is not designed for consumers to seek their own redress, but it is intended to provide consumers with the confidence that their goods are of accurate weight or measure without concerning themselves with the details of technical requirements and standards. The National Consumer Survey in 2009 found that 11% of New Zealanders had bought something where they thought the weight or measure was different than expected. Of these individuals 40% returned the product to the seller and 53% indicated they did nothing. Of those who went back to the seller over 80% were satisfied with the redress they received.

A significant part of administering and enforcing the Weights and Measures Act involves complying with international standards. New Zealand has a commitment to implement the Organisation of Legal Metrology’s (OIML) International Recommendations to the greatest possible extent in its domestic legislation⁶⁰. The OIML’s mission is to harmonise legal metrology internationally. Most countries are members of OIML and have harmonised standalone weights and measures laws. Alignment with international convention makes it easier for New Zealand to work with other jurisdictions on weights and measures matters. This enables consumers and businesses worldwide to have greater confidence that the products they are purchasing meet the same measurement standards, whether they are locally produced, exported or imported.

Possible areas for amendment in the Weights and Measures Act

The Weights and Measures Act remains substantially sound. A small minor change that could improve the operation of the Act has been identified and this is discussed below. The Consumer Law Reform review provides an opportunity for comment on the workability of any other aspects of the Act and these are invited.

Mandatory reverification

All weighing and measuring equipment must be checked and verified by an Inspector or Accredited Person before it can be used in trade.

Currently weighing and measuring equipment is only required to be verified initially and provided that the equipment is stamped with the mark of verification and seals remain in tact, then the equipment is not required to undergo any further testing.

Traders can choose to voluntarily have their equipment tested and be issued with a "certificate of accuracy", which lasts for 12 months. However it is left up to individual traders to decide if they want their equipment tested and certified.

A certificate of accuracy offers a trader some degree of confidence that their measuring equipment is fair and accurate.

The certificate also gives the trader some legal backing in that they are doing their best to ensure that their measurement equipment is fair and accurate.

Surveillance has found that in certain areas of trade there have been high non-compliance rates revealed involving false or unjust weighing and measuring equipment. For example, recent testing of weighbridges has shown a rate of non-compliance as high as 70%. A potential way to solve this would be through introducing mandatory verification periods in these areas.

The Australian system now requires that all weighing and measuring equipment used in trade be verified on a regular basis. The New Zealand system could adopt similar provisions through either requiring mandatory reverification or mandatory certificates of accuracy. It is possible to require mandatory reverification in those areas that show the highest rates of non-compliance, however this may signal that other areas of trade measurement are of lesser importance.

Possible inclusion of the Weights and Measures Act in an Enhanced Fair Trading Act

One of the objectives of the Consumer Law Reform review is to achieve simplification and consolidation of the existing law. Accordingly, consideration has been given to including weights and measures provisions in an enhanced Fair Trading Act.

Having accurate systems for weights and measures is a requirement for “fair trade”, so it could be logical to incorporate the Weights and Measures Act in an enhanced Fair Trading Act.

There is an obvious risk though that the Weights and Measures Act would lose its identity, and it may be harder for businesses and other users to find if it is incorporated in more generic legislation. Being able to locate the law is a key element of its transparency, which is an essential feature of good law. One of the other objectives of the review is having in place law that is readily accessible to those who are affected by it.

There is a trade-off between having a lesser number of statutes and ease of businesses wanting to find relevant law. Weights and measures law internationally tends to stand alone. In Australia, there is the National Measurement Act 1960. This is not being included in the Australian Consumer Law. Taking into consideration another of the review objectives, harmonisation with Australia as appropriate, there is a case for continuing a standalone Weights and Measures Act in New Zealand.

Unlike the other legislation it is suggested could be included in an enhanced Fair Trading Act, the Weights and Measures Act does not readily fit within the principles-based framework of the Fair Trading Act. As noted, the Weights and Measures Act is, and needs to be, fairly prescriptive legislation. Businesses and Accredited Persons rely heavily on the legislation for direction and also guidance through the linkages through OIML and Asia Pacific Legal Metrology Forum (APLMF) “Uniform Best International Practice”. The Act is primarily based on technical requirements that require a wide range of specific technical knowledge and expertise. The Act also has a whole physical infrastructure sitting behind it that is required to support trade transactions and to enable enforcement.

Enforcement

The Weights and Measures Act is currently enforced by the Ministry of Consumer Affairs, which employs weights and measures inspectors. If the Weights and Measures Act was incorporated in the Fair Trading Act, there would be a case for involving the Commerce Commission in the enforcement of the weights and measures provisions.

This could be an advantage. During enforcement activities Ministry of Consumer Affairs inspectors have sometimes noted other discrepancies outside of the scope of the Weights and Measures Act that they are unable to enforce at the time. For example, while checking a firewood measure, inspectors have noted debris other than firewood within the measuring device. While still conforming to the Weights and Measures Act, this is a likely breach of the Fair Trading Act. Under the current arrangement, the inspector is unable to do anything more than inform the Commerce Commission of the breach. If the Weights and Measures Act were incorporated into an enhanced Fair Trading Act it might be more practical for a Commerce Commission officer to pursue any breach of the Fair Trading Act simultaneously while enforcing the weights and measures section.

There may also be disadvantages. If the Commerce Commission was responsible for enforcement of weights and measures legislation it is possible that given the higher level cases the Commission deals with, the weights and measures legislation may not receive the same priority it has within the Ministry of Consumer Affairs, leading to less of the specific enforcement activity. Also, given that the Ministry of Consumer Affairs is responsible for considering updates to the Act with respect to OIML International Recommendations, there might be an undesirable disconnect between those enforcing the legislation and those who maintain it. Aspects of legal metrology are highly technical including verification of physical standards, type approving and verification of measuring instruments, conducting statistical-based sampling programmes for pre-packaged goods and technical-based auditing of Accredited Persons. These responsibilities would not fit easily within the Commerce Commission’s current operational model.

It does not necessarily follow that including the Weights and Measures Act in an enhanced Fair Trading Act would mean the enforcement responsibility would shift to the Commerce Commission. The enforcement of the weights and measures sections could equally remain the responsibility of the Ministry of Consumer Affairs.

In summary:

Weights and measures laws are essential to a well-functioning market place. The fundamentals of the current law go back in history many, many years.
The current law is substantially sound. A small change has been identified that could assist its workability. Other suggestions of possible change are welcome.
Consideration has been given to including weights and measures provisions in an enhanced Fair Trading Act. On balance there would seem to be good reasons for maintaining a standalone Weights and Measures Act.

Questions

Footnotes

59 Weights and Measures Act 1987, Part 3.

60 Organizacion Internacional de Metrologia Legal (OIML) – International Organisation of Legal Metrology.