Unfair trading
What the legislation does
Protection for consumers
The Consumer Protection Regulations 2008 apply to business practices (i.e. not private transactions) that affect consumers.
The regulations ban traders in all sectors from using unfair commercial practices towards consumers. They set out broad rules outlining when commercial practices are unfair.
These fall into four main categories:
- A general ban on conduct below a level which may be expected towards consumers (honest market practice/good faith). This is intended to act as a “safety net” protection for all consumers.
- Misleading practices, like false or deceptive messages or leaving out important information.
- Aggressive sales techniques that use harassment, coercion or undue influence
For a practice to be unfair under these rules, they must harm, or be likely to harm, the economic interests of the average consumer. For example, when a shopper makesa purchasing decision he or she would not have made had he or she been given accurate information or not put underunfair pressure to do so.
- In addition, the regulations ban 31 specific practices outright.
Banned practices
The following 31 practices are banned outright:
| Falsely claiming accreditation |
1. Fake 'code' credentials. Claiming to be a signatory to a code of conduct when the trader is not.
2. Fake membership claims. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Fake code endorsements. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Fake 'approved trader' claims. Claiming that a trader (including his/her commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/she/it has not, or making such a claim without complying with the terms of the approval, endorsement or authorisation.
| A builder claims that he is registered under the Pert & Kinross ‘Better Business Partnership’ scheme when he is not. This would breach the regulations. |
| Pricing and product/service information |
5. Special offer – not in stock. 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/she 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.
This is known as bait advertising.
6. 'Limited time only' claims. 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.
7. Selling 'illegal' goods. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
8. Highlighting your statutory rights. Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.
9. Miracle cure claims. Falsely claiming that a product is able to cure illnesses, disfunction or malformations.
10. Promoting a product you don’t want to sell. Making an invitation to purchase products at a specifiedprice and then:
(a) Refusing to show the advertised item to consumers;
Or (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 (known as bait and switch).
11. Scare tactics. Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his or her family if the consumer does not purchase the product.
12. Creating extra paperwork. 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/her contractual rights.
13. Dishonest advertorials. Using editorial content in the media to promote a product where a trader has paid for the promotion (advertorial) without making that clear in the content or by imagesor sounds clearly identifiable by the consumer.
14. Brand lookalikes. 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.
15. Closing down sales. Claiming that the trader is about to cease trading or move premises when he/she is not.
16. Pulling the wool over their eyes. 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.
17. Fake invoices. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he/she has already ordered the marketed product when he/she has not.
18. A wolf in sheep’s clothing. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his/her trade, business, craft or profession, or falsely representing oneself as a consumer.
19. Advertising to children. 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.
| Competitions and Prize Draws |
20. Pyramid schemes. 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.
21. Gambling system claims. Claiming that products are able to facilitate winning in games of chance.
22. Winner takes nothing. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
23. Bogus free offers? 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.
24. No win situations. 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:
– There is no prize or other equivalent benefit,
Or – Taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.
| Sales and After-Sales Service |
25. Forcing the sale. Creating the impression that the consumer cannot leave the premises until a contract is formed.
26. Overstaying your welcome. Conducting personal visits to the consumer’s home and ignoring the consumer’s request to leave or not to return, except in circumstances and to the extent justified, under national law, to enforce a contractual obligation.
27. Pestering the consumer. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation.
28. Using guilt to make sales. Explicitly informing a consumer that if he or she does not buy the product or service, the trader’s job or livelihood will be in jeopardy.
29. Asking for payment for unsolicited products. 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) Regulations2000 (this is known as inertia selling).
30. Talking the same language. 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 Member 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.
31. Misleading after-sales information. Creating the false impression that after-sales service in relation to a product is available in a European Member State other than the one in which the product is sold.
Protection for businesses
The Business Protection from Misleading Marketing Regulations 2008 prohibit misleading business-to-business advertising and set out the conditions under which comparative advertisements (which is any advertisement which identifies a
competitor or a competitor’s product) are permitted.
Enforcement
Routine inspection visits to premises to make spot checks and monitor advertisements (on premises, in the media or on the internet). If reasonable cause for suspicion of an offence exists, officers can require production of the books and documents of the business. We may purchase goods or secure the provision of services, accommodation or facilities to investigate complaints . We can seize offending goods.
Premises affected
All premises, shops, retail and wholesale. Manufacturers, importers. All forms of media, magazines and newspapers, radio & TV, internet
Key Legislation
Consumer Protection from Unfair Trading Regulations 2008
Business Protection from Misleading Marketing Regulations 2008
Trade Descriptions Act 1968
Trade Descriptions (Sealskin Goods) (Information) Order 1980
Trade Descriptions (Country of Origin) (Cutlery) Order 1981
