The Consumer Protection from Unfair Trading Regulations 2008
| Year | 2008 |
2008 No. 1277
Consumer Protection
The Consumer Protection from Unfair Trading Regulations 2008
Made 8th May 2008
Coming into force 26th May 2008
The Secretary of State, being a Minister designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to measures relating to consumer protection and to the control of advertising, makes the following Regulations in exercise of the powers conferred upon him by section 2(2) of that Act;
In accordance with paragraph 2(2) of Schedule 2 to that Act3, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.
PART 1
GENERAL
Citation and commencement
1. These Regulations may be cited as the Consumer Protection from Unfair Trading Regulations 2008 and shall come into force on 26th May 2008.
Interpretation
2.—(1) In these Regulations—
“average consumer” shall be construed in accordance with paragraphs (2) to (6);
“business” includes a trade, craft or profession;
“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;
“code owner” means a trader or a body responsible for—
(a) the formulation and revision of a code of conduct; or
(b) monitoring compliance with the code by those who have undertaken to be bound by it;
“commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;
“consumer” means any individual who in relation to a commercial practice is acting for purposes which are outside his business;
“enforcement authority” means the OFT, every local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 19854) and the Department of Enterprise, Trade and Investment in Northern Ireland;
“goods” includes ships, aircraft, animals, things attached to land and growing crops;
“invitation to purchase” means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase;
“materially distort the economic behaviour” means in relation to an average consumer, appreciably to impair the average consumer’s ability to make an informed decision thereby causing him to take a transactional decision that he would not have taken otherwise;
“OFT” means the Office of Fair Trading;
“premises” includes any place and any stall, vehicle, ship or aircraft;
“product” means any goods or service and includes immovable property, rights and obligations;
“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either—
(a) honest market practice in the trader’s field of activity, or
(b) the general principle of good faith in the trader’s field of activity;
“ship” includes any boat and any other description of vessel used in navigation;
“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader;
“transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning—
(a) whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or
(b) whether, how and on what terms to exercise a contractual right in relation to a product.
(2) In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect.
(3) Paragraphs (4) and (5) set out the circumstances in which a reference to the average consumer shall be read as in addition referring to the average member of a particular group of consumers.
(4) In determining the effect of a commercial practice on the average consumer where the practice is directed to a particular group of consumers, a reference to the average consumer shall be read as referring to the average member of that group.
(5) In determining the effect of a commercial practice on the average consumer—
(a)
(a) where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, and
(b)
(b) where the practice is likely to materially distort the economic behaviour only of that group,
a reference to the average consumer shall be read as referring to the average member of that group.
(6) Paragraph (5) is without prejudice to the common and legitimate advertising practice of making exaggerated statements which are not meant to be taken literally.
PART 2
PROHIBITIONS
Prohibition of unfair commercial practices
3.—(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a)
(a) it contravenes the requirements of professional diligence; and
(b)
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.
(4) A commercial practice is unfair if—
(a)
(a) it is a misleading action under the provisions of regulation 5;
(b)
(b) it is a misleading omission under the provisions of regulation 6;
(c)
(c) it is aggressive under the provisions of regulation 7; or
(d)
(d) it is listed in Schedule 1.
Prohibition of the promotion of unfair commercial practices
4. The promotion of any unfair commercial practice by a code owner in a code of conduct is prohibited.
Misleading actions
5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
(2) A commercial practice satisfies the conditions of this paragraph—
(a)
(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
(b)
(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(3) A commercial practice satisfies the conditions of this paragraph if—
(a)
(a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
(b)
(b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) the commitment is firm and capable of being verified and is not aspirational,
and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.
(4) The matters referred to in paragraph (2)(a) are—
(a)
(a) the existence or nature of the product;
(b)
(b) the main characteristics of the product (as defined in paragraph 5);
(c)
(c) the extent of the trader’s commitments;
(d)
(d) the motives for the commercial practice;
(e)
(e) the nature of the sales process;
(f)
(f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;
(g)
(g) the price or the manner in which the price is calculated;
(h)
(h) the existence of a specific price advantage;
(i)
(i) the need for a service, part, replacement or repair;
(j)
(j) the nature, attributes and rights of the trader (as defined in paragraph 6);
(k)
(k) the consumer’s rights or the risks he may face.
(5) In paragraph (4)(b), the “main characteristics of the product” include—
(a)
(a) availability of the product;
(b)
(b) benefits of the product;
(c)
(c) risks of the product;
(d)
(d) execution of the product;
(e)
(e) composition of the product;
(f)
(f) accessories of the product;
(g)
(g) after-sale customer assistance concerning the product;
(h)
(h) the handling of complaints about the product;
(i)
(i) the method and date of manufacture of the product;
(j)
(j) the method and date of provision of the product;
(k)
(k) delivery of the product;
(l)
(l) fitness for purpose of the product;
(m)
(m) usage of the product;
(n)
(n) quantity of the product;
(o)
(o) specification of the product;
(p)
(p) geographical or commercial origin of the product;
(q)
(q) results to be expected from use of the product; and
(r)
(r) results and material features of tests or checks carried out on the product.
(6) In paragraph (4)(j), the “nature, attributes and rights” as far as concern the trader include the trader’s—
(a)
(a) identity;
(b)
(b) assets;
(c)
(c) qualifications;
(d)
(d) status;
(e)
(e) approval;
(f)
(f) affiliations or connections;
(g)
(g)...
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