The Consumer Protection from Unfair Trading Regulations 2008 (the ‘Regulations’) affect all business-to-consumer transactions, so any business which sells consumer goods, supplies services used by consumers, labels consumer goods, etc., needs to comply with these Regulations. 

The Regulations prohibit unfair practices.  In most cases, an offence is only committed if the unfair practice causes, or is likely to cause, the average consumer to make a different decision to that which he would have made, e.g. buys a different product.  This is not the case, however, with the Schedule 1 offences (see below).

The Regulations mark out ‘misleading actions and omissions’ and ‘aggressive’ practices as being unfair practices, list 31 specific practices which are illegal, and then use a catch-all category to sweep up any unfair practices which do not fall into these categories.

We note that misleading actions specifically include marketing a product in a way which creates confusion with any other products, trade marks, trade names or other distinguishing marks of a competitor.  This is very similar to passing off and trade mark infringement.  The Regulations, therefore, provide another route for aggrieved trade mark owners to challenge a rival’s usage of confusingly similar trade marks.

Leaving out material information may be a misleading omission.  Adverts and online shops must give all the information the average consumer needs to know in order to make an informed decision.  This will include giving details about the product, e.g. the wattage of electrical goods.  Complex products or services will require more information to be given to consumers than simple ones.  

In Schedule 1 to the Regulations, 31 practices are laid out which are always deemed unfair, without the need for proof that they were likely to affect a consumer’s decision-making.  Of these, we note number 13 (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).  This is very similar to passing off.  Now, therefore, there is a statutory remedy for passing off, and one where there is no need to prove the actual effect on consumer behaviour, so it is wider than passing off.

Regulation 3 is a general prohibition against unfair commercial practices: a catch-all.  A practice is unfair if it (a) contravenes the requirements of professional diligence (the standard of skill and care which a trader may reasonably be expected to exercise), and (b) is likely to cause the average consumer to make a decision he would not otherwise have made.  This is extremely general.  For guidance on what ‘professional diligence’ is, it has been suggested that we look at existing codes of conduct.

Private individuals or firms may not sue under the Regulations directly: they must complain to the OFT or their Local Authority Trading Standards Service.  These authorities will, depending on the seriousness of the offence, issue enforcement notices or bring criminal court proceedings.  The penalties are a fine of up to £5000 and/or imprisonment of up to two years.

Posted: August 14th, 2008 under Miscellaneous.
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