The Consumer Protection from Unfair Trading Regulations 2008 (the 'CPRs') came into force on 26 May 2008. The reguations implemented the Unfair Commercial Practices Directive into UK law.
Unfair commercial practices include those commercial practices that contravene the requirements of professional diligence, misleading actions, misleading omissions, and aggressive commercial practices.
The regulations can be read alongside The Business Protection from Misleading Marketing Regulations 2008. These accompanying rules examine unfair trading practices between business and business.
Unfair commercial practices directive
The new regulations
Broadly speaking, if consumers are treated fairly, then traders are likely to be complying with the CPRs. This means that fair-dealing businesses should not have to make major changes to their practices. However, if a trader misleads, behaves aggressively, or otherwise acts unfairly towards consumers, then the trader is likely to be in breach of the CPRs and may face action by enforcement authorities.
Supervision and enforcement
- Weights and Measures authorities (e.g. Trading Standards)
- the Department of Enterprise, Trade and Investment in Northern Ireland
- In Scotland, prosecutions are conducted by the Crown Office and Procurator Fiscal Service on behalf of the Lord Advocate.
The offences are:
- contravention of requirements of the general prohibition
- misleading actions (except 5(3)(b) – code commitments)
- misleading omissions (including the omission of specified information in invitations to purchase)
- aggressive practices
- specific unfair commercial practices (Schedule 1) apart from numbers 11 and 28 – see chapter 6 on banned practices.
The offences above are all strict liability offences, apart from contravention of the general prohibition, which requires proof of mens rea. For strict liability offences it need only be shown that there has been a prohibited act or omission. For a person to be convicted of a contravention of the general prohibition, which is a mens rea offence, it must also be shown that he had a specified state of mind. The specified state of mind will be knowledge or recklessness in engaging in a commercial practice which fails to comply with the requirement of professional diligence.
In the case of a prosecution for contravening the general prohibition, the mental element (‘knowingly or recklessly’) only needs to be shown in relation to contravention of ‘the requirements of professional diligence’. It does not need to be shown in relation to the effect on the average consumer, assessed against the material distortion and transactional
Examples of outright prohibitions
- Claiming to be a signatory to a code of conduct when not.
- Displaying a trust mark, quality mark or equivalent without authorisation.
- Claiming that a code of conduct has an endorsement from a public or other body when not.
- Claiming that a trader, his commercial practices or a product has been approved, endorsed or authorised by a public or private body when not.
- Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply, or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
- Making an invitation to purchase products at a specified price and then: (a) refusing to show the advertised item to consumers (b) refusing to take orders for it or deliver it within a reasonable time, or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch).
- Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
- Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the European Economic Area State where the trader is located, and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.
- Stating or otherwise creating the impression that a product can legally be sold when it cannot.
- Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.
- Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).
- Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
- Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
- Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.
- Claiming that the trader is about to cease trading or move premises when he is not.
- Claiming that products are able to facilitate winning in games of chance.
- Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
- Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
- Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
- Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
- Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
- Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
- Creating the false impression that after-sales service in relation to a product is available in a European Economic Area State other than the one in which the product is sold.
- Creating the impression that the consumer cannot leave the premises until a contract is formed.
- Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return except in circumstances and to the extent justified to enforce a contractual obligation.
- Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified to enforce a contractual obligation.
- Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
- Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
- Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer, except where the product is a substitute supplied in accordance with regulation 19(7) of The Consumer Protection (Distance Selling) Regulations 2000
- Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy.
- Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either: (a) there is no prize or other equivalent benefit, or (b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.