It’s not fair!

The Consumer Protection from Unfair Trading Regulations 2008 (the “Regulations”) come into force on 26 May.  The Regulations are intended to protect consumers from unfair, misleading and aggressive commercial practices.

A commercial practice is any activity linked to a promotion, sale or supply of products to consumers

A practice is “unfair” if it:

• contravenes the requirement of professional diligence and/or
• materially distorts or is likely to distort the average consumer’s economic behaviour

A practice is misleading if it deceives or is likely to deceive the average consumer into entering into a transaction into which he would not normally have entered

A practice is aggressive if by harassment, coercion or undue influence, it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice, causing him to enter into a transaction into which he would not normally have entered

The average consumer:

• is one who is reasonably well informed and reasonably observant and circumspect; and
• must be judged in relation to the relevant target market, for example children

In addition, there are 31 examples of “blacklisted” practices which will be automatically regarded as unfair without having to apply the “average consumer” test

Blacklisted practices include:

• displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;
• claiming to offer a competition or prize promotion without awarding the prizes described or an equivalent;
• claiming that the trader is about to cease trading or move premises when it is not;
• giving the impression that the consumer cannot leave the trader’s premises until the contract is formed
• Note that the following are caught by the regulations:
• aggressive after-sales practices, for example using aggression to prevent consumers from requesting a refund or exercising a right to cancel;
• misleading omissions, for example omitting material information – such as delivery charges - which a consumer needs to make an informed purchase decision.

Action: read the Government guidance on the Regulations at: http://www.oft.gov.uk/shared_oft/business_leaflets/general/CPRguide.pdf
http://www.oft.gov.uk/shared_oft/business_leaflets/530162/oft931int.pdf

 

Catherine O'Riordan
Solicitor
Company Commercial Department
Spratt Endicott Solicitors