Following a VRT news article “3 out of 10 fashion items bought online are returned: is charging return costs the solution?”,we at theJurists are once again crawling into our pen. Current events beg us to raise awareness of the concept of the right of withdrawal once again.
Crash course: ‘the right of withdrawal’
A reminder: when a consumer concludes a distance contract – i.e. not physically in the shop, but for example via a webshop – the law gives this customer a right of withdrawal.
The right of withdrawal gives consumers a 14-day cooling-off period. Within this period, he can inform the company of his wish to cancel his purchase.
On top of this, he is given another 14-day period to effectively return the order. So please note that the total period is 28 days!
When doing so, do not forget to provide the consumer with a model form. The consumer can use this, or any other unambiguous statement, to express their withdrawal.
Also important is that the consumer does not have to give a reason for his withdrawal. Of course, you can always ask about the motives for withdrawal. After all, there is no harm in asking. This questioning might provide useful business insights for you.
After the return, the consumer must also be refunded. It is not just the price of the goods, the initial delivery cost must also be refunded if the entire order is returned. For the refund, use the same means of payment the consumer used to pay you, unless he explicitly agrees to a different method of reimbursement.
Of course, your customer cannot always enjoy the benefit of the cooling-off period. There are a number of exceptions included in the law, 14 to be precise. Of course, some exceptions are more relevant than others. We list a few that could be of some use to most entrepreneurs.
Consumers have no right of withdrawal when the good they ordered is custom-made.
A coffee mug for Mother’s Day with a photo of the family on it would, if returned, be unusable for resale. Therefore, it makes sense that your company should not have to take back these goods. Other types of personalised products also fall under this exception.
When a sealed audio or video recording is delivered, and its seal is broken, the consumer also loses the benefit of the cooling-off period.
A CD or DVD ordered through a webshop, which has been removed from its wrapping plastic, will not be returnable.
Of course, as a company, you should clearly communicate to the customer that he no longer enjoys a withdrawal period in these cases.
So what is the problem?
The rationale behind the cooling-off period is that consumers should be able to try out and inspect the purchase, just as they would normally have been able to do in the shop. No more and no less. And that is where the problem arises: often the consumer does go and do more.
For instance, the pair of trainers ordered may be tried on and tried out in an indoor space. However, putting the trainers on for a walk in the woods and then returning them goes beyond the purpose of the right of withdrawal.
Another problem that arises today, and which you may also have been guilty of, is purchasing multiple sizes of clothing, only to return all the sets except the right size to the seller.
Which brings us to the press release: out of 10 million fashion items bought online, 3 million were returned. Hallucinatory figures, which cost entrepreneurs a lot of money. Think of the return costs (when the company offers free returns), but also, for example, the cost of repackaging and inspecting the returned goods.
Nothing new under the sun
The exception as common practice
Nonetheless, the starting point in the law is that the consumer bears the direct cost of returning the goods. You can, however, deviate from this. Indeed, the company can agree to bear these costs itself and thus offer a free return. This exception also seems to be the common practice to this day. But for how long?
In November 2021, a proposal to end the free return was made in Belgium. There was no more than a proposal at the time.
However, with the current change in approach – Zara, as one of the major fashion chains, does now charge return costs, for example – and the continued pressure from business associations such as UNIZO, the free return may soon be a thing of the past.
But make no mistake: the law has never imposed an obligation on the company to return free of charge. To this day, this is still just a business choice.
Curse or blessing
From the consumer’s point of view, the free return is undoubtedly a blessing. For your business, on the other hand, the right of withdrawal itself certainly does not have to be a curse.
However, a shift of the return cost back to the consumer may be worth considering. Or one could look for other ways to reduce returns.
One example is integrating augmented reality into the ordering process. With augmented reality, you add digital elements to your environment. So it looks like you are trying on the clothes yourself. A virtual fitting room in your living room!
And also remember, the consumer who returns goods that have been more than merely tested won’t just get away with it. He will owe compensation for the depreciation of your product.
Note that using the good beyond what is necessary to test it is not (for the time being) an exception to the right of withdrawal. So the consumer can still return the used good! Admittedly subject to paying the depreciation.
However, if you find the compensation for depreciation an insufficient incentive to prevent ‘use-and-return’, consider some creative solutions to prevent the products from actually being used during the cooling-off period, such as attaching highly visible labels.
This may not completely eliminate the “abuse” of the right of withdrawal, but by providing creative and technological solutions, you can already reduce the number of returns!
As was made clear above, the right of withdrawal is strictly regulated by law, but that does not prevent you from finding ways to reduce the number of returns on your webshop. In short, the right of withdrawal is nothing to fear.
Do you need help implementing the right of withdrawal in your webshop? Would you like to check whether your current return policy complies with the law? Or just check whether your products can benefit from an exception to the right of withdrawal? For questions and advice, please contact us at firstname.lastname@example.org.
Written by Chloë Vanderstraeten, Legal Adviser theJurists, and Kris Seyen, Partner theJurists