The Consumer Protection from Unfair
Trading
Regulations 2008
1. Introduction
The Consumer Protection from Unfair Trading Regulations 2008 (the Regulations) came into force on 28 May 2008 and implemented the Unfair Commercial Practices Directive (UCPD) into UK Law. They have replaced many of the existing laws including most of the Trade Descriptions Act 1968 and Part 3 of the Consumer Protection Act 1987 (misleading price indications). The Regulations have been designed to clamp down on business practices that are deemed to be unfair to consumers and to protect those consumers and honest businesses from misleading or aggressive practices of any business involved in commercial practices before, during and after a contract is made.
Put simply, the Regulations have been introduced to simplify consumer protection in the UK and across the EU member states, thus making it clear which commercial practices are and are not allowed so as to support growth of the internal European market. Ultimately, by providing a high common standard of consumer protection, the Regulations should increase consumer confidence and encourage consumers to shop in the UK and across borders.
The Regulations do not extend to protecting businesses, and businesses should therefore consult The Business Protection from Misleading Marketing Regulations 2008 (the Business Regulations), which have replaced the Trade Descriptions Act insofar as the Act protects businesses.
A broad set of rules have been introduced to determine when commercial practices are considered to be unfair. These rules have been split into four main categories:
1) A general ban on conduct below a level which may be expected towards consumers i.e. contrary to the requirements of professional diligence;
2) Misleading practices including false or deceptive messages or the failure to disclose important information which may cause the consumer to take a transactional decision that he/she may not have ordinarily taken;
3) Aggressive sales techniques that use harassment, coercion or undue influence to significantly impair the average consumer’s freedom of choice or conduct to take a transactional decision that he/she may not otherwise have made;
4) An additional 31 prohibitions have been introduced to prevent the aggressive selling techniques of traders and misinforming and misleading people about products or services.
2. 31 commercial practices prohibited in all circumstances
A list of 31 prohibited commercial practices are banned in all circumstances. Please see the complete attached article for a list of these practices. Examples of some of the general prohibited practices include:
- displaying a trust mark, quality mark or equivalent without having obtained necessary authorisation.
- making special offers when products are not in stock.
- falsely stating that a product will be available for a limited time in order to elicit an immediate decision.
- promoting products that the trader does not intend to sell.
- using scare tactics to induce consumers into buying products.
3. Summary
Broadly speaking, the Regulations apply to any commercial practices that are likely to affect consumers i.e. any acts or omissions by a trader directly connected with the promotion, sale or supply of a product to or from consumers. They sit alongside other consumer protections including contract law. Products include goods and services, rights and obligations, and can range from simple products such as an item of clothing to services involved in complex processes such as purchasing a property. Accordingly, any commercial practice that has the potential to affect consumers will need to be assessed against the prohibitions contained in the Regulations.
The Regulations do not however protect business to business practices with no potential affect to consumers, however business practices with the potential to affect both consumers and businesses will be covered.
In the event of a breach of the Regulations, local enforcement authorities and other bodies including the Local Authority Trading Standards Services (TSS), the Department of Enterprise, Trade and Investment in Northern Ireland and the OFT will be entitled to use a range of tools to ensure that businesses are complying with the Regulations. These may include, education, advice and guidance, established means (well-founded effective systems of regulation in place in the UK), codes of conduct, civil enforcement (penalties or unlimited fines) and if necessary, criminal enforcement (imprisonment of up to 2 years).
For further details on this topic please contact Mark Lazarus.
Issued October 2008
