EXTENDS
The Business Protection from Misleading Marketing Regulations 2008

The Business Protection from Misleading Marketing Regulations 2008 (Memo)

EXPLANATORY MEMORANDUM TO THE BUSINESS PROTECTION FROM MISLEADING MARKETING REGULATIONS 2008 No.1276

EXPLANATORY MEMORANDUM TO

THE CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008

2008 No. 1277

THE BUSINESS PROTECTION FROM MISLEADING MARKETING REGULATIONS 2008

2008 No.1276

1. This explanatory memorandum has been prepared by the Department for Business, Enterprise Regulatory Reform and is laid before Parliament by Command of Her Majesty.

2. Description

2.1 The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) introduce a general prohibition on traders in all sectors engaging in unfair commercial (mainly marketing and selling) practices against consumers. It will put in place a comprehensive framework for dealing with sharp practices and rogue traders who deliberately set out to exploit loopholes in existing legislation.

2.2 The CPRs also repeal a number of laws which cover the same subject matter, including most of the Trade Descriptions Act 1968 (TDA), to create a modern, simplified consumer protection framework.

2.3 The Business Protection from Misleading Marketing Regulations 2008 (BPRs) 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. The BPRs are intended to ensure that there is no reduction in business protections following the repeal of certain legislation such as the TDA which protects businesses as well as consumers.

3. Matters of special interest to the Joint Committee on Statutory Instruments

3.1 The Unfair Commercial Practices Directive (UCPD) is a maximum harmonisation directive and does not permit Member States to maintain national provisions falling within its scope (unfair commercial practices harming consumers' economic interests) which exceed the provisions of the UCPD (with some exceptions). Accordingly in transposing the UCPD it has been necessary to identify all legislation falling within the scope of the UCPD. The legislation could have been amended so as to make it consistent with UCPD or repealed. The preferred approach following consultation has been to repeal overlapping laws in order that existing laws are replaced with the provisions of the Regulations (see further paragraphs 7.8 to 7.12 below).

3.2 The CPRs repeal much of the Trade Descriptions Act 1968 including the prohibition on false trade descriptions in section 1(1) and the provision on false or misleading statements as to services in section 14. These provisions fall within the scope of the UCPD as they apply in business-to-consumer (B-to-C) cases and could not be maintained consistently ...

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