The Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”) came into force on 26 May 2008 and implement the EU Unfair Commercial Practices Directive in the UK. They introduce a general duty on businesses not to trade unfairly when dealing with consumers.
Previously this area was subject to a wide variety of laws aimed at specific practices and marketing sectors. The CPRs repeal 23 different laws of this kind: ranging from the well-known (the Trade Descriptions Act 1968) to the obscure (the Fraudulent Mediums Act 1951).
But this does not mean that you can now tell your customers that you can speak to dead people, who urge them to buy your products. Such a claim would now be caught (assuming it was untrue) by the general prohibition in the CPRs of unfair commercial practices. The CPRs go on specifically to prohibit misleading and aggressive commercial practices (so no telling your customers the dead people will haunt them if they don’t buy your products), and for good measure they include a blacklist of 31 specific commercial practices that are explicitly banned. Here are 10 of the more common examples from the blacklist:
- “Bait advertising” i.e. advertising at a low price when you don’t have sufficient stock to meet the expected demand.
- 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, e.g. falsely claiming that the price will go up in 7 days’ time.
- “Advertorial” i.e. editorial content in the media to promote a product, where you don’t make it clear in the content that you’ve paid for it. Advertorial is still permitted, but you must clearly label it ‘Advertising Feature’, ‘Advertorial’ or similar.
- Claiming that you are about to cease trading or move premises when you are not, e.g. holding a bogus ‘Closing Down Sale’.
- Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
- Offering a competition or prize promotion without awarding the prizes described or a reasonable equivalent, e.g. holding back the scratch card with the £10,000 jackpot.
- 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 (so legitimate debt collection is still permitted, but no strong arm tactics).
- Making persistent and unwanted solicitations by telephone, fax, email or other remote media except in circumstances and to the extent justified to enforce a contractual obligation, e.g. ignoring opt outs or requests not to call again.
- 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. Note that this only covers “direct” exhortations, e.g. ‘Ask your mummy to buy it for you!’ Most adverts in the UK are a bit more subtle than that – even those aimed at young children, so this isn’t the ban on “pester power” some parents might be hoping for!
- 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. We’ve all received these. The Office of Fair Trading has shown itself willing to take action in the European Courts; obtaining an injunction in the Dutch Court in July 2008 against a company sending misleading prize draw mailings to UK consumers. The trouble is that many of these mailings originate from outside the EU.
It might seem a bit contrary to have a general prohibition, and then have a detailed list like this, but it’s a common lawyer’s device. The important thing to remember is that just because your cunning plan isn’t caught by the blacklist, that doesn’t mean it won’t be caught by the general prohibition.