This article was originally published on Tuesday 27 October but has been updated to include the comments made by Minister of State Damien English last night.

HAVING REOPENED THEIR doors to customers over the summer months, many non-essential retailers have had to drop the shutters once again after the government’s move to Level 5 of the ‘Living with Covid’ plan last week.

Last night, Damien English, the Minister of State for Employment Affairs and Retail Businesses was pressed on the essential/non-essential distinction on RTÉ’s Prime Time programme.

Asked by Miriam O’Callaghan if children’s socks were essential, he said that socks fall under the category of clothes and are therefore non-essential items.

The Meath West TD said that “the whole aim is to discourage the movement of people as much as we possibly can”.

So what exactly do the current rules say; what items and retailers are considered essential and non-essential and what are the penalties for businesses that don’t follow the restrictions?

Let’s take a look.

What’s the current situation?

We should all be familiar with it by now.

Essential retailers — supermarkets, hardware shops, pharmacies etc — are permitted to keep their doors open to customers during the Level 5 restrictions which are to remain in place until early December.

Non-essential retailers — homeware shops, clothes shops, toy shops and the like — are only allowed to remain open if they offer online delivery or ‘click/phone and collect’ services.

Even then, customers aren’t allowed into the shop except to collect their items and only if they live within the 5km limit.

That means no browsing or trying on items in a non-essential retail outlet until, all going to plan, early December.

Sounds fairly straightforward. What’s the issue?

There are two issues actually, both of which revolve around questions of competition and fairness.

Some non-essential retailers have complained that some of their competitors, many of them larger in size, are able to continue selling non-essential items, taking advantage of the fact that smaller shops have had to close their doors to customers.

For example, toy shops are only allowed to operate click and collect or delivery services for the next weeks. Meanwhile, supermarkets, many of which also happen to sell toys, can remain open to customers.

If the supermarket continued selling toys, that would be an unfair advantage, or so the argument goes.

The second issue is that some high-profile but definitely non-essential retailers have reportedly expanded their range of goods in a bid to stay open to customers.

While most non-essential shops have had to clampdown on walk-in customer visits, some of their larger competitors have actually stocked up on ‘essential’ goods and started selling them.

What do the government guidelines say?

In relation to the first problem mentioned above, the guidelines are pretty cut and dry.

Where retailers offer a mix of essential and non-essential goods for sale, the business is required to “make arrangements for the separation” of the non-essential section.

That’s why if you’ve taken a trip to one of the larger supermarkets recently, you’ve probably seen the clothes or the toys section cordoned off.

The second problem identified is a bit trickier.

There’s really nothing in the guidelines to prohibit non-essential retailers stocking up on and selling essential items during Level 5.

This is, of course, provided the sale of essential goods is not being used as a way to funnel customers into the store so they can buy non-essential goods.

Again, if that what’s going on, the rules are fairly cut and dry.

For example, last weekend, the Mike Ashley-owned chain SportsDirect was accused of ramping up sales of PPE in order to continue operating during Level 5.

However, a spokesperson for the company told The Irish Times that its outlets were only selling “essential items” and that ”all non-essential products have been moved to the back of the shop and/or are cordoned off from customers”.

How are the rules enforced?

Gardaí can carry out inspections of businesses to ensure compliance and, in extreme cases, bring criminal charges against offending businesses for that purpose.

The regulations are laid out a statutory instrument, which came into force on 22 October.

That instrument provides for the “carrying on or provision of certain businesses and services” subject to a range of conditions.

Crucially, access to the general public is prohibited except in the case “where the premises is used to provide an essential service, provided that such access is granted, or otherwise permitted, only to such part of the premises as is operating solely to provide the essential service”.

In other words, as explained above, that means in-store purchases of non-essential items are strictly verboten until the regulations expire in December.

In response to a query from TheJournal.ie, a garda spokesperson said that this is “a penal regulation”, which means it can be enforced through fines and criminal charges.

However, the spokesperson said, gardaí will only use enforcement “as a last resort”.

Have gardaí had to ‘enforce’ the rules?

According to the gardaí, yes — but details are thin on the ground.

“An Garda Síochána has and continues to carry out inspections on business premises to ensure compliance with public health guidelines and regulations,” the spokesperson said.

However, the spokesperson added the gardaí will not be providing data on enforcement “on a daily or individual basis but will provide data in an aggregated form when appropriate”.  

How widespread are these breaches?

It’s difficult to say, really.

If you’re abiding by the regulations to the letter, you’re probably not taking many trips to the shops, meaning eyewitness accounts are in short supply.

However, the issues are serious enough that, on foot complaints from their members, lobby groups Retail Excellence Ireland and ISME have raised concerns about them in the last week.

Tánaiste and business minister Leo Varadkar also addressed the second issue in an interview on RTÉ Radio at the weekend.

“If you’re selling essential products, that’s one thing,” he said.

“If you’re trying to use essential products as a means of opening your store to sell non-essential products, that’s not okay, that’s not lawful, and we will bring an enforcement action and it’s also unfair.”