In the guide
What the law says about the sale of spray paints to people under 16
This guidance is for England and Wales
It is a criminal offence to sell an aerosol paint container to anyone under the age of 16.
There are measures you shouldput in place to avoid selling to under-16s. These include carrying out age-verification checks and regular staff training.
Anti-social behaviour and aerosol spray paint
The Anti-social Behaviour Act 2003 addresses the problem of spray-painted graffiti, recognising that graffiti can contribute to the fear of crime. Research has shown that graffiti, litter and general degradation of a neighbourhood disproportionately affect people's sense of safety and security. Local authorities spend considerable sums of money every year removing graffiti, with varying degrees of success.
The Anti-social Behaviour Act 2003 deals with the sale of aerosol paint to children:
If you are charged with an offence of selling an aerosol paint container to a person under 16, you have the defence that you took all reasonable steps to determine the purchaser's age and that you reasonably believed that the purchaser was not under 16.
If you, as the owner of the business, are charged with an offence because someone working in your premises sold an aerosol paint container to a person under 16, you have the defence that you took all reasonable steps to avoid committing the offence.
Keeping within the law
In order to keep within the law and therefore satisfythe legal defences, you should introduce an age verification policy and have effective systems to prevent sales to under-16s. 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 the following.
AGE VERIFICATION CHECKS
Always ask young people to produce proof of their age. The Chartered Trading Standards Institute, the Home Office and the National Police Chiefs' Council support the UK's national Proof of Age Standards Scheme (PASS), 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.
A photo driving licenceor passport arealso acceptable but make sure that the card matches the person using it and the date of birth shows they are at least 16. 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.
You do not have to accept all of the above forms of identification and it may be best to exclude any type of document that your staff are not familiar with.
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.
If the person cannot prove that they are at least the minimum legal age - or if you are in any doubt - the sale should be refused.
Please see the Home Office False ID Guidance for more information.
OPERATE A CHALLENGE 21 OR CHALLENGE 25 SYSTEM
This means that if the person appears to be under 21 or 25, they will be asked to verify that they are 16 or over by showing valid proof of age.
Make sure your staff are properly trained. They should know which products are age restricted, what the age restriction is and the action they must take if they believe a person under 16 is attempting to buy. It is important that you can prove 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 members 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 (date, time, incident, description of potential buyer). Maintaining a refusals log will help to demonstrate that you actively refuse sales and have an effective system in place. 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.
STORE AND PRODUCT LAYOUT
Identify the age-restricted products in your store and consider moving them nearer to the counter, or even behind it. Consider displaying dummy packs so that people have to ask for the products if they want to buy them.
If you possess an EPoS system then it may be possible to use it to remind staff of age restrictions via a prompt. Alternatively, stickers can be used over certain product barcodes.
Display posters showing age limits and a statement regarding the refusal of such sales. This may deter potential purchasers and act as a reminder to staff.
CLOSED CIRCUIT TELEVISION (CCTV)
A CCTV system may act as a deterrent and reduce the number of incidents of underage sales. It will also help you to monitor 'blind spots' within your store if it is not possible to change the layout or relocate the products behind, or closer to, the counter.
If you sell by distance means, such as online or via a catalogue, you should set up an effective system capable of verifying the age of potential purchasers. Please see'Online sales of age-restricted products' for more information.
For more information on the work of trading standards services - and the possible consequences of not abiding by the law - please see 'Trading standards: powers, enforcement and penalties'.
Last reviewed / updated: October 2020
In this update
No major changes
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 legislation can be found on each link's 'More Resources' tab.
© 2021 itsa Ltd.