Consumer protection from unfair trading - guidance

GUIDANCE on the UK Regulations

(May 2008) implementing the Unfair

Commercial Practices Directive

This publication (excluding the OFT and BERR logos) may be

reproduced free of charge in any format or medium provided that it

is reproduced accurately and not used in a misleading context. The

material must be acknowledged as crown copyright and the title of

the publication speciﬁed.

Guidance on

the Consumer

Protection

from Unfair

Trading

Regulations

2008

CONTENTS | 1

CONTENTS

CHAPTER PAGE

1 Using the Guidance 2

PART 1

2 Introduction 7

3 The CPRs – an overview 9

4 Scope 13

5 Assessing unfairness 16

PART 2

6 Banned practices (Schedule 1) 20

7 Misleading practices (Regulations 5 and 6) 28

8 Aggressive commercial practices (Regulation 7) 40

9 Promoting unfair practices in codes of conduct

(Regulation 4) 44

10 General prohibition of unfair commercial practices

(Regulation 3) 46

PART 3

11 Compliance and enforcement 50

12 Criminal offences 55

13 Investigative powers 59

PART 4

14 Glossary 63

ANNEX

A Illustrative examples 71

B Effect on UK law 77

C List of contacts 81

2 | PART 1 | USING THE GUIDANCE

CHAPTER 1

USING THE GUIDANCE

AIM OF THE GUIDANCE

1.1 This Guidance is principally intended to help traders to

comply with the Consumer Protection from Unfair Trading

Regulations 2008 (CPRs). It will also be of use to enforcers,

and to consumer advisors in understanding what actions are

prohibited. The Guidance sets out the views of the Ofﬁce

of Fair Trading (OFT) and the Department for Business,

Enterprise and Regulatory Reform (BERR). It seeks to

illustrate how the CPRs may apply in practice. Ultimately,

however, only the courts can decide whether or not a

commercial practice is unfair within the meaning of the

CPRs. This Guidance should not be regarded as a substitute

for, or deﬁnitive interpretation of, the CPRs and should be

read in conjunction with them.

1.2 The examples used in this Guidance seek to illustrate the

possible effect of the CPRs. They do not cover every situation

or practice in which a breach of the CPRs may occur.

USING THE GUIDANCE | PART 1 | 3

HOW TO USE THE GUIDANCE

1.3 This Guidance is split into four parts. Part 1 contains an

introduction and a short overview, including a description

of the scope of the CPRs. There is a also a ﬂowchart to help

the reader assess whether commercial practices are unfair

under the CPRs.

1.4 Part 2 deals with what is prohibited by the CPRs in more

detail. It explains the prohibitions in the order which we

consider it most helpful to approach them, starting with

the speciﬁc prohibitions, then covering misleading and

aggressive practices and ﬁnally the general duty not to trade

unfairly.

1.5 Part 3 provides information on compliance, enforcement,

offences, and investigative powers.

1.6 Part 4 starts with a glossary of terms. These terms are

printed in bold type throughout the Guidance. They refer

to key concepts such as ‘transactional decision’. The

glossary discusses the concept of the ‘average consumer’

in some detail. Note that illustrative examples can be found

throughout the text in italics.

1.7 Also in Part 4, the Annexes to the Guidance contain some

examples which show how an assessment against the

prohibitions might work in practice, and information about

changes to those legislative measures that were repealed or

amended by the CPRs. Finally, there is a list of contacts and

references where further information can be found.

1.8 A diagram illustrating the key provisions and structure of the

Regulations is given below. See Chapter 3 for a more detailed

summary of the different prohibitions.

4 | PART 1 | USING THE GUIDANCE

Unfair if

they cause

consumers

to take a

different

decision

Always

Unfair

BANNED PRACTICES

31 SPECIFIC PRACTICES

(BANNED IN ALL CIRCUMSTANCES)

MISLEADING PRACTICES AGGRESSIVE

PRACTICES

OMISSIONSACTIONS

GENERAL PROHIBITION

(CONTRARY TO THE REQUIREMENTS

PROFESSIONAL DILIGENCE)

USING THE GUIDANCE | PART 1 | 5

PART 1

6 | PART 1 | USING THE GUIDANCE

CHAPTER 2

INTRODUCTION

1 Statutory Instrument 2008/1277

2 Directive 2005/29/EC.

The Consumer Protection from Unfair Trading Regulations

2.1 The Consumer Protection from Unfair Trading Regulations

2008 (CPRs)

, came into force on 26 May 2008, and

implemented the Unfair Commercial Practices Directive

(UCPD) into UK law.

2.2 The UCPD aims to harmonise the legislation across the

European Community preventing business practices

that are unfair to consumers, so as to support growth of

the internal (European) market. Uniform law about unfair

commercial practices will make it easier for traders based

in one Member State to market and sell their products

to consumers in other Member States. It will also give

consumers greater conﬁdence to shop in the UK, and across

borders, by providing a high common standard of consumer

protection.

2.3 The UCPD’s broad scope means that it tackles many

issues already covered by existing laws. In order to avoid

duplication, and so as to modernise and simplify the UK’s

consumer protection framework, the CPRs partially or

wholly repeal provisions in 23 such laws. Twelve of these

laws are repealed outright, including for instance Part III

of the Consumer Protection Act 1987. Eleven are repealed

in part, including most of the Trade Descriptions Act 1968.

The CPRs provide similar or greater protection to these laws.

See Annex B for further details on changes to previously

existing law.

2.4 The CPRs apply to commercial practices before, during

and after a contract is made. The CPRs contain a general

prohibition of unfair commercial practices and, in

particular, contain prohibitions of misleading and aggressive

commercial practices. They also prohibit 31 speciﬁc

commercial practices that are listed in chapter 6 on banned

practices. These prohibitions are explained in more detail in

Part 2 of the Guidance.

2.5 Broadly speaking, if consumers are treated fairly, then

traders are likely to be complying with the CPRs. This means

that fair-dealing businesses should not have to make major

changes to their practices. However, if a trader misleads,

behaves aggressively, or otherwise acts unfairly towards

consumers, then the trader is likely to be in breach of the

CPRs and may face action by enforcement authorities.

Details of potential enforcement action (both civil and

criminal enforcement is possible under the CPRs) can be

found in Part 3 of the Guidance.

8 | PART 1 | INTRODUCTION

CHAPTER 3

THE CPRs –

AN OVERVIEW

3.1 The CPRs consist of:

• ageneralprohibitionofunfaircommercial practices,

• prohibitionsofmisleadingandaggressivepractices,

and

• 31practicesprohibitedinallcircumstances.

These prohibitions, and the scope of the CPRs, are

summarised below. Further explanation appears in the

following chapters and in the glossary.

2 SCOPE

3.2 The CPRs apply to any act, omission and other conduct by

businesses directly connected to the promotion, sale or

supply of a product

to or from consumers (whether before,

during or after a commercial transaction, if any). They do not

apply when only consumers are involved in a transaction.

Most commercial practices covered by the CPRs will

involve a direct relationship between businesses (that is,

‘traders’) and consumers. However there may be instances

where the commercial practice could have a sufﬁciently

close connection with consumers as to fall within the scope

of the CPRs, even though the trader himself does not deal

directly with consumers.

3 GENERAL PROHIBITION

3.3 Regulation 3 contains a general prohibition of unfair

commercial practices.

3.4 A commercial practice is unfair if:

• itisnotprofessionally diligent, and

• itmaterially distorts, or is likely to materially distort,

the economic behaviour of the average consumer.

Essentially, for the general prohibition to apply, the trader’s

practice must be unacceptable when measured against an

objective standard and must also have (or be likely to have) an

effect on the economic behaviour of the average consumer.

The second condition is likely to be met if, for example,

because of the practice, the average consumer would buy a

product they would not otherwise have bought, or would not

exercise cancellation rights when otherwise they would have

done so.

MISLEADING AND AGGRESSIVE PRACTICES

3.5 Regulations 5-7 of the CPRs prohibit commercial practices

which are misleading (whether by action or omission) or

aggressive, and which cause or are likely to cause the

average consumer to take a different decision.

3 This has a wide meaning – see the box at the end of this

chapter.

4 See chapter 4 on Scope.

10 | PART 1 | THE CPRS – AN OVERVIEW

PRACTICES PROHIBITED IN ALL CIRCUMSTANCES

3.6 Schedule 1 to the CPRs lists 31 commercial practices

which are unfair in all circumstances and are prohibited.

The CPRs use ‘product’ to refer to goods and services in a wide

sense, including immovable property, rights and obligations. The

prohibitions apply to commercial practices relating to products

in this wider sense. It is important to note this because the

legislation they replace was in many cases narrower in scope,

for instance applying to just goods or services, for instance

applying to just goods and services. The Trade Descriptions Act

1968 applied to both goods and services but there were, different

sets of rules applied to goods and to services. The CPRs apply

in the same way to both goods and services, and also extend to

intangible rights such as cancellation or cashback options.

In the text of the Guidance we use ‘average consumer’ to refer

to each of three types of consumer (‘average’, ‘average targeted’

and ‘average vulnerable’). These concepts are explained in the

glossary. We use ‘take a different decision’ as shorthand for

‘take a transactional decision that he would not have taken

otherwise’. See the glossary entry for ‘transactional decision’

for more details.

THE CPRS – AN OVERVIEW | PART 1 | 11

IS THE PRACTICE

UNFAIR?

PRACTICE

IS UNFAIR

* In some situations (where an invitation to purchase is made) certain

speciﬁed information must always be provided unless apparent. (pages 35-39)

PRACTICE IS NOT UNFAIR

Practice not

caught by CPRs

START

HERE

Might my

practice affect

consumers?

(pages 14-15)

Is what I am doing

prohibited outright

(see list of 31

practices)?

(pages 21-27)

Am I giving false

information to,

or deceiving, my

customers?

(pages 29-33)

Am I failing to

give important

information about

a product?*

(pages 33-35)

Am I acting

aggressively?

(pages 41-43)

Am I failing to act

in accordance with

the standards a

reasonable person

would expect?

(pages 47-48)

Does my practice

cause, or is it

likely to cause,

the average

consumer to

take a different

decision about

any products or

related decisions

(including

cancellation)?

(pages 68-70)

12 | PART 1 | THE CPRS – AN OVERVIEW

CHAPTER 4

SCOPE

PRACTICES AFFECTING CONSUMERS

4.1 Broadly the CPRs apply to practices that may affect

consumers. The CPRs sit alongside the other protections

for consumers. In particular, the existing system of contract

law, including the law on unfair contract terms, remains

unchanged by the CPRs.

4.2 The CPRs apply to commercial practices that can

be described as ‘business to consumer’. These are

acts or omissions by a trader, directly connected with

the promotion, sale or supply of a product to or from

consumers. Products include goods and services, rights

and obligations, and range from simple products like an item

of clothing to the services involved in complex processes

such as buying a house.

4.3 Whilst most commercial practices will occur where a

trader deals directly with consumers, any commercial

practice that has the potential to affect consumers may

need to be assessed against the prohibitions in the CPRs.

For example where a trader sells a product to a consumer,

acts or omissions which occur further up the supply chain

may also constitute commercial practices.

4.4 The CPRs apply to commercial practices that occur

before, during and after a transaction, if any. Examples of

commercial practices that occur following a transaction

include actions related to debt collection,

after-sales

services, and the cancellation of an existing contract. This

is because these practices are directly connected with the

sale or supply of a product.

5 Although it is important to note that whilst the way in

which debts are enforced or collected may lead to unfair

commercial practices by the trader or his agents this

does not of itself enable consumers to refuse to pay

legitimate debts.

14 | PART 1 | SCOPE

6 Statutory Instrument 2008/1276

7 Other legislation also applies to the labelling of food

products. Traders must comply with all relevant legislation,

not just the CPRs.

Examples:

OUTSIDE SCOPE (not covered by the CPRs)

1. Business to business practices with no potential to affect

consumers

A trader sells specialist tractor parts to businesses only.

As consumers do not buy his products, the trader does not

need to consider compliance with the CPRs. The trader may

need to consider the Business Protection from Misleading

Marketing Regulations 2008.

IN SCOPE (covered by the CPRs)

2. Business practices with the potential to affect both

consumers and businesses

A trader sells spare computer parts over the internet. He sells

a range of different products. The trader needs to consider

compliance with the CPRs if consumers may buy the products.

3. Any aspect of a business to business practice that is directly

connected to the sale of a product to consumers.

A trader makes and sells processed cheese slices to

supermarkets. Although the trader does not sell directly to

consumers, any labels he produces must be compliant with

the CPRs as they are directly connected with the promotion

and sale of the cheese slices to consumers.

4. Practices by a trader where he purchases a product from

the consumer

A trader makes statements about the value of a car he

intends to purchase from a consumer. These statements

would need to comply with the CPRs. This does not preclude

haggling over the value of the product, but does cover

misleading statements and other unfair practices (by the

trader) engaged in as part of this process.

A trader who is an expert on Chinese pottery tells a

consumer that a Ming vase she wants to sell to him is a

fake. If this was not the case the statement would be likely to

amount to a misleading action.

A trader offers to buy scrap metal from a consumer and

offers £10 a kilo. He states that the metal offered weighs

5 kilos, whereas it actually weighs 9. This would be a

misleading action.

SCOPE | PART 1 | 15

CHAPTER 5

ASSESSING

UNFAIRNESS

CONDUCT AND EFFECT

5.1 There are 31 commercial practices listed in Schedule 1 to

the CPRs which, because of their inherently unfair nature,

are prohibited in all circumstances. Evidence of their effect,

or likely effect, on the average consumer is not required in

order to prove a breach of one of these outright prohibitions.

5.2 By contrast, for a commercial practice to be a breach of

the other two prohibitions mentioned above – the general

prohibition, and the prohibition on misleading and aggressive

practices – the trader must exhibit the conduct speciﬁed in

the prohibition, and the practice must have, or be likely to

have, an effect on the behaviour of the average consumer.

To assess the effect, or potential effect, of the conduct it is

necessary to consider the concepts of average consumer

and transactional decision, which are explained in the

glossary.

5.3 The table below summarises the type of conduct to

which each of the prohibitions can apply, and (where an

effect is needed) the effect on consumers that will make

such conduct unfair. Please see the relevant chapters for

explanations of the terms used in this table. The table refers

to the individual Regulations that make up the CPRs. Both the

conduct and effect ‘tests’ relevant to each speciﬁc Regulation

need to be satisﬁed before a practice can be considered

unfair under the CPRs by reference to that Regulation.

ASSESSING UNFAIRNESS | PART 1 | 17

18 | PART 1 | ASSESSING UNFAIRNESS

TABLE FOR ASSESSING

UNFAIRNESS

REGULATION 3

REGULATION 5

REGULATION 6

REGULATION 7

SCHEDULE 1

Contrary to the

requirements

of professional

diligence

False or deceptive

practice in relation

to a speciﬁc list of

key factors

Aggressive practice

by harassment,

coercion or undue

influence

Read across the page for the relevant conduct and effect ‘tests’ for each Regulation.

And

(Likely to) signiﬁcantly

impair the average

consumer’s freedom of

choice or conduct

And as a result

DOES NOT APPLY

(No impairment or transactional

decision tests)

And

(Likely to) appreciably

impair the average

consumer’s ability

to make an informed

decision

And as a result

One of 31 speciﬁed

practices

Causes (or is

likely to cause)

the average

consumer to

take a different

(transactional)

decision

REGULATION CONDUCT EFFECT

Omission (or unclear/

untimely provision) of

material information

PART 2

CHAPTER 6

BANNED

PRACTICES

(SCHEDULE 1)

CHAPTER 6

BANNED

PRACTICES

(SCHEDULE 1)

OUTRIGHT PROHIBITIONS

6.1 Schedule 1 to the CPRs lists 31 commercial practices

which are considered unfair in all circumstances and which

are prohibited.

There is no need to consider the likely effect

on consumers. The text that follows lists these banned

practices and provides some illustrative examples in italicised

text. Breaches of these provisions may also breach the other

prohibitions in the CPRs.

(1) Claiming to be a signatory to a code of conduct when the

trader is not.

(2) Displaying a trust mark, quality mark or equivalent without

having obtained the necessary authorisation.

(3) Claiming that a code of conduct has an endorsement

from a public or other body which it does not have.

A member of the (voluntary) Pure Water Code displays the

code logo in his shop and on his advertising materials and

claims beside the logo that the code is ‘approved by the

Ofﬁce of Fair Trading’. The code has not been approved. This

would breach the CPRs.

(4) Claiming that a trader (including his commercial

practices) or a product has been approved, endorsed

or authorised by a public or private body when the trader,

the commercial practices or the product have not or

making such a claim without complying with the terms

of the approval, endorsement or authorisation.

A plumber claims that he is CORGI-Registered

when he is

not. This would breach the CPRs.

(5) Making an invitation to purchase products at a speciﬁed

price without disclosing the existence of any reasonable

grounds the trader may have for believing that he will not

be able to offer for supply, or to procure another trader

to supply, those products or equivalent products at

that price for a period that is, and in quantities that are,

reasonable having regard to the product, the scale of

advertising of the product and the price offered (bait

advertising).

A camera ﬁrm advertises nationally using the line ‘Digital

cameras for £3’.

They had only ever planned to have a very

small number of such cameras available at that price. This

would breach the CPRs because the number of cameras

actually available for £3 would not be sufﬁcient to meet the

likely level of demand arising from the scale of the advertising

and the trader knew this but failed to make clear in the

advertisement that only limited numbers were available.

8 The prohibition is contained in regulations 3(1) and 3(4)(d)

of the CPRs.

9 Council for Registered Gas Installers scheme.

10 For the purposes of this example assume it is an invitation

to purchase.

BANNED PRACTICES (SCHEDULE 1) | PART 2 | 21

(6) Making an invitation to purchase products at a speciﬁed

price and then:

(a) refusing to show the advertised item to consumers

(b) refusing to take orders for it or deliver it within

a reasonable time, or

with the intention of promoting a different product (bait

and switch).

A trader advertises a television in his shop window for

£300.

When consumers ask him about it, he shows them a

model which does not work properly, and then refers them to

a different model of television. If the trader intentionally used

this practice to promote a different model (for instance one

offering a higher proﬁt margin), it would breach the CPRs.

(7) 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.

A trader falsely tells a consumer that prices for new houses

will be increased in 7 days time, in order to pressurise him

into making an immediate decision to buy.

(8) Undertaking to provide after-sales service to consumers

with whom the trader has communicated prior to a

transaction in a language which is not an ofﬁcial language

of the European Economic Area State where the trader

is located, and then making such service available only

in another language without clearly disclosing this to

the consumer before the consumer is committed to

the transaction.

A trader based in the UK agrees to provide after-sales service

to a consumer with whom he has been communicating in

German. The trader then provides after-sales services only

in English, without warning the consumer pre-contract that

that would be the case. This would breach the CPRs.

(9) Stating or otherwise creating the impression that a

product can legally be sold when it cannot.

A trader offers goods for sale in circumstances in which the

consumer cannot legally become their owner by buying

them from him, for instance because they have been stolen

and he has no legal title to pass on. This would breach the

CPRs.

11 For the purposes of this example assume it is an

invitation to purchase.

22 | PART 2 | BANNED PRACTICES (SCHEDULE 1)

(10) Presenting rights given to consumers in law as

a distinctive feature of the trader’s offer.

A stationer sells pens. He advertises on the following basis:

‘Pens for sale. If they don’t work I’ll give you your money back

or replace them. You won’t ﬁnd this offer elsewhere’. If the

pen is faulty at the time of purchase the consumer would be

entitled to a refund, repair or replacement under contract law.

The trader’s emphasis on the unique nature of his offer to

refund or replace would breach the CPRs.

(11) Using editorial content in the media to promote a

product where a trader has paid for the promotion

without making that clear in the content or by images or

sounds clearly identiﬁable by the consumer (advertorial).

A magazine is paid by a holiday company for an advertising

feature on their luxury Red Sea diving school. The magazine

does not make it clear that this is a paid-for feature – for

example by clearly labelling it ‘Advertising Feature’ or

‘Advertorial’. This would breach the CPRs.

(12) Making a materially inaccurate claim concerning the

nature and extent of the risk to the personal security

of the consumer or his family if the consumer does

not purchase the product.

A trader selling video door entry systems tells potential

customers ‘There have been a lot of doorstep muggings in

your street recently. There is clearly a gang at work in this

area, and you will probably be mugged on your doorstep too,

before very long, unless you purchase one of my door entry

systems now’. If the risk of doorstep mugging is materially

exaggerated the statement would breach the CPRs.

(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.

A trader designs the packaging of shampoo A so that it

very closely resembles that of shampoo B, an established

brand of a competitor. If the similarity was introduced to

deliberately mislead consumers into believing that shampoo

A is made by the competitor (who makes shampoo B) – this

would breach the CPRs.

BANNED PRACTICES (SCHEDULE 1) | PART 2 | 23

(14) Establishing, operating or promoting a pyramid

promotional scheme where a consumer gives

consideration for the opportunity to receive

compensation that is derived primarily from the

introduction of other consumers into the scheme

rather than from the sale or consumption of products.

A trader operates a holiday club which offers consumers,

on payment of a membership fee, the opportunity of earning

large amounts of money by recruiting other consumers

to membership of the club. The other beneﬁts of club

membership are negligible compared to the potential

rewards of earning commission for introducing new

members. This practice would breach the CPRs.

(15) Claiming that the trader is about to cease trading

or move premises when he is not.

A trader runs a clothes shop. He puts up a sign in the shop

window stating: ‘Closing down sale’. Unless the shop was

genuinely closing down this would breach the CPRs.

(16) Claiming that products are able to facilitate winning in

games of chance.

A trader advertises a computer program with the claim:

‘This will help you win money on scratchcard lotteries’. This

would breach the CPRs.

(17) Falsely claiming that a product is able to cure illnesses,

dysfunction or malformations.

A trader sells orthopaedic beds to the elderly with the

advertisement ‘Cure your backache once and for all with my

special beds’. If untrue, his deﬁnitive statement about the

curative effects of his product would breach the CPRs. The

court may order the trader to substantiate such a claim in

proceedings.

(18) Passing on materially inaccurate information on market

conditions or on the possibility of ﬁnding the product

with the intention of inducing the consumer to acquire

the product at conditions less favourable than normal

market conditions.

An estate agent tells a consumer that he has recently

sold several houses in the same area, just like the one the

consumer is viewing, at a certain price. If this is not true and

he is making the claim in order to persuade the consumer

to buy at an inﬂated price, the estate agent would breach the

CPRs.

24 | PART 2 | BANNED PRACTICES (SCHEDULE 1)

(19) Claiming in a commercial practice to offer a competition

or prize promotion without awarding the prizes described

or a reasonable equivalent.

A trader operates a scratch-card prize promotion with a top

prize of £10,000. In fact, he does not print any cards that win

this top prize (or does print the cards but does not make them

available). As this would mean that no prizes of £10,000 could

be awarded, this would breach the CPRs.

(20) Describing a product as ‘gratis’, ‘free’, ‘without charge’

or similar if the consumer has to pay anything other than

the unavoidable cost of responding to the commercial

practice and collecting or paying for delivery of the item.

A trader advertises a ‘free’ gift. He then tells consumers that

in order to receive their ‘free’ gift they need to pay an extra

fee. This would breach the CPRs.

(21) Including in marketing material an invoice or similar

document seeking payment which gives the consumer

the impression that he has already ordered the marketed

product when he has not.

A trader sends letters to consumers with his marketing

material which are or closely resemble invoices for a product

that has not been ordered. This would breach the CPRs.

(22) Falsely claiming or creating the impression that the

trader is not acting for purposes relating to his trade,

business, craft or profession, or falsely representing

oneself as a consumer.

A second-hand car dealership puts a used car on a nearby

road and displays a handwritten advertisement reading

‘One careful owner. Good family run-around. £2000 or

nearest offer. Call Jack on 01234 56789’. The sign gives the

impression that the seller is not selling as a trader, and

hence this would breach the CPRs.

(23) Creating the false impression that after-sales service in

relation to a product is available in a European Economic

Area State

other than the one in which the product is sold.

(24) Creating the impression that the consumer cannot leave

the premises until a contract is formed.

A holiday company advertise sales presentations at hotels.

During the presentations, intimidating doormen are posted

at all the exits, creating the impression that the consumers

cannot leave before buying. This would breach the CPRs.

12 European Economic Area (EEA) States are all European

Member States and, in addition, Norway, Iceland and

Liechtenstein. See http://ec.europa.eu/external_relations/

eea/ for further information on the EEA.

BANNED PRACTICES (SCHEDULE 1) | PART 2 | 25

(25) 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

enforce a contractual obligation.

A door to door salesman visits a consumer to sell her some

cleaning products. She tells him she is not interested

and asks him to leave. He is determined to try and get her

to change her mind and continues his sales pitch on her

doorstep. This would breach the CPRs.

(26) Making persistent and unwanted solicitations by

telephone, fax, e-mail or other remote media except

in circumstances and to the extent justiﬁed

to enforce

a contractual obligation.

A direct seller telephones consumers to sell them products,

but does not record when consumers have explicitly asked

to be removed from their contact lists. The trader calls back

consumers several times, who have asked him not to. This

would breach the CPRs.

Note that a consumer who has signed up to the Telephone

Preference Service is likely to be regarded as a consumer

who does not want unsolicited telephone calls.

(27) Requiring a consumer who wishes to claim on an

insurance policy to produce documents which could

not reasonably be considered relevant as to whether

the claim was valid, or failing systematically to respond

to pertinent correspondence, in order to dissuade a

consumer from exercising his contractual rights.

(28) 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.

Advertising a comic book for children stating ‘read about the

adventures of Fluffy the Bunny in this new comic book each

week – ask your mum to buy it from your local newsagents’.

This (telling children to ask their mothers) would breach the

CPRs.

(29) Demanding immediate or deferred payment for or the

return or safekeeping of products supplied by the trader,

but not solicited by the consumer, except where the

product is a substitute supplied in accordance with

regulation 19(7) of the consumer Protection (Distance

Selling) Regulations 2000 (inertia selling).

A trader writes to consumers informing them of a new

grease eradicating dishcloth which he is selling for £2.99.

In the letter the trader encloses one of the cloths for the

consumer to inspect and says that if the consumer does

not return the cloth within 7 days then action will be taken to

collect the £2.99. This would breach the CPRs.

13 Allowed actions would include legitimate debt

collection or asset recovery in line with the rules

governing such actions.

14 Allowed action would include, for example,

legitimate debt collection. Collectors must,

however, comply with CPRs, as well as the

Consumer Credit Act 1974 – on which the Ofﬁce of

Fair Trading has issued guidance: Debt collection

guidance OFT 664.

15 Statutory Instrument 2000/2334

26 | PART 2 | BANNED PRACTICES (SCHEDULE 1)

(30) Explicitly informing a consumer that if he does not buy the

product or service, the trader’s job or livelihood will be in

jeopardy.

(31) 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.

A trader sends letters to consumers which, at the top of the letter

in large characters, state: ‘You have won our top prize of £3,000.’

This is false – only the small print on the back of the letter mentions

that the consumer must buy a product before being entered into a

draw for the money. This would breach the CPRs.

BANNED PRACTICES (SCHEDULE 1) | PART 2 | 27

CHAPTER 7

MISLEADING

PRACTICES

(REGULATIONS 5 AND 6)

7.1 The CPRs prohibit misleading actions and misleading

omissions (as detailed in regulations 5 and 6),

which cause

or are likely to cause the average consumer to take a

different decision.

7.2 A practice can mislead by action or omission or both. These

prohibitions aim to ensure that consumers get from traders,

in a clear and timely fashion, the information they need to

make informed decisions relating to products. In addition,

in some commercial practices (referred to as ‘invitations

to purchase’) certain speciﬁc information must be given to

consumers, unless apparent from the context.

MISLEADING ACTIONS (regulation 5)

Giving false information to, or deceiving, customers

7.3 A misleading action occurs when a practice misleads through

the information it contains, or its deceptive presentation, and

causes or is likely to cause the average consumer to take a

different decision.

7.4 For instance, if a trader falsely tells a consumer that his

boiler cannot be repaired and he will need a new one, he will

have committed a misleading action.

7.5 The CPRs specify three types of misleading actions:

• misleadinginformationgenerally(seepara7.6below)

• creatingconfusionwithcompetitors’products

(see para 7.10 below)

• failingtohonourrmandveriablecommitmentsmadein

a code of conduct (see para 7.11 below).

Each of these three types of misleading actions

is dealt with in greater detail below.

16 The prohibitions are contained in regulations 3(1), 3(4)(a)

and 3(4)(b) of the CPRs.

MISLEADING PRACTICES (REGULATIONS 5 AND 6) | PART 2 | 29

MISLEADING INFORMATION GENERALLY

7.6 These are actions that mislead by:

• containingfalseinformationORdeceivingorbeinglikely

to deceive the average consumer (even if the information

they contain is factually correct),

and

• thefalseinformation,ordeception,relatestooneormore

pieces of information in a (wide-ranging) list (see below),

and

 • theaverage consumer takes, or is likely to take,

a different decision as a result.

7.7 The list of information mentioned above includes the main

factors consumers are likely to take into account in making

decisions relating to products, for example the main

characteristics of the product and the price or the way it is

calculated. The full list follows:

(a) the existence or nature of the product,

(b) the main characteristics of the product

(d) the motives for the commercial practice

(e) the nature of the sales process

(f) any statement or symbol relating to direct or indirect

sponsorship or approval of the trader or the product

(g) the price or the manner in which the price is calculated

(h) the existence of a speciﬁc price advantage

(i) the need for a service, part, replacement or repair

(j) the nature, attributes and rights of the trader or his agent

(k) the consumer’s rights or the risks he may face.

The ‘main characteristics of the product’ include:

(a) availability of the product

(b) beneﬁts of the product

(d) execution of the product

(e) composition of the product

(f) accessories of the product

(g) after-sale customer assistance concerning the product

(h) the handling of complaints about the product

(i) the method and date of manufacture of the product

(j) the method and date of provision of the product

17 The deception can occur in any way, including in the

overall presentation of the commercial practice.

30 | PART 2 | MISLEADING PRACTICES (REGULATIONS 5 AND 6)

(k) delivery of the product

(l) ﬁtness for purpose of the product

(m) usage of the product

(n) quantity of the product

(o) speciﬁcation of the product

(p) geographical or commercial origin of the product

(q) results to be expected from use of the product

(r) results and material features of tests or checks carried out

on the product.

The ‘nature, attributes and rights of the trader or his agent’

include:

(a) identity

(b) assets

(d) status

(e) approval

(f) afﬁliations or connections

(g) ownership of industrial, commercial or intellectual

property rights

(h) awards and distinctions.

7.8 The ‘consumer’s rights’ include rights the consumer may

have under Part 5A of the Sale of Goods Act 1979 or Part 1B

of the Supply of Goods and Services Act 1982.

Examples:

A trader tries to sell a consumer a satellite television

package. The consumer is falsely told that the package

includes certain key channels, which are in fact only available

at an additional subscription cost. The trader has provided

false information about the ‘main characteristics of the

product’ (in this case, the contents of the package). As this

practice is likely to cause the average consumer to take a

different decision about the package – for example to buy it

where otherwise he would not - it will breach the CPRs.

A trader advertises televisions for sale saying the price has

been substantially discounted. In fact, they have only been

on sale at the non-discounted price in very small numbers for

a very short period of time in one of the trader’s numerous

shops. Whilst the trader’s advertisement may be factually

correct, it is likely nonetheless to be deceptive. The average

consumer would have been deceived about the existence of

a speciﬁc price advantage in a way that is likely to cause him

to take a different decision about the television – in this case

to buy it.

MISLEADING PRACTICES (REGULATIONS 5 AND 6) | PART 2 | 31

A trader advertises a house as having 3 bedrooms, when

in fact it has 2; or it does have 3 rooms called bedrooms but

the third is physically too small to ﬁt a bed in. This will be a

misleading action if it causes the average consumer to take

a different decision in relation to the house as a result. The

misleading information here about the number of bedrooms

would probably relate to 5(4)(a), the ‘main characteristics

of the product’, by virtue of 5(5)(o) the ‘speciﬁcation’ of the

product, i.e. the house.

7.9 The Code of Practice for Traders on Price Indications

no longer has effect. BERR have issued non-statutory

best practice guidance on pricing,

which reﬂects the

requirements of the CPRs.

CREATING CONFUSION WITH COMPETITORS’

PRODUCTS

7.10 Commercial practices are also prohibited as misleading

actions if they:

• marketaproduct in a way which creates confusion

with any products, trade marks, trade names or other

distinguishing marks of a competitor,

and

• theaverage consumer takes, or is likely to take,

a different decision as a result

Example:

A trader names or brands his new sunglasses so as to

very closely resemble the name or brand of a competitor’s

sunglasses. If the similarity is such as to confuse the average

consumer making him more likely to opt for the new

sunglasses when he otherwise would not, this would breach

the CPRs.

FAILING TO HONOUR COMMITMENTS MADE IN A CODE

OF CONDUCT

7.11 The third category of commercial practices prohibited as

misleading actions is that where:

• thetrader has undertaken to be bound by a code of

conduct (or code of practice), and indicates that he

is bound by it in the commercial practice,

and

• thetrader fails to comply with a ﬁrm and veriﬁable

commitment in that code,

and

• theaverage consumer takes, or is likely to take,

a different decision as a result

18 BERR Pricing Practices Guide: Guidance for traders on

good practice in giving information about prices

- URN 08/918

32 | PART 2 | MISLEADING PRACTICES (REGULATIONS 5 AND 6)

Example

A trader has agreed to be bound by a code of practice that

promotes the sustainable use of wood and displays the

code’s logo in an advertising campaign (i.e. in a commercial

practice). The code of practice contains a commitment that

its members will not use hardwood from unsustainable

sources. However, it is found that the product advertised by

the trader contains hardwood from endangered rainforests.

This practice is a breach of a ﬁrm and veriﬁable commitment.

As the average consumer would expect code members to

sell products which comply with their code, and is likely to

decide to buy them on this basis, this practice would breach

the CPRs.

MISLEADING OMISSIONS (regulation 6)

Giving insufﬁcient information about the product

7.12 Practices may also mislead by failing to give consumers the

information they need to make an informed choice (in relation

to a product). This occurs when practices:

• omitorhidematerialinformation,orprovideitinan

unclear, unintelligible, ambiguous or untimely manner,

and

 • theaverage consumer takes, or is likely to take,

a different decision as a result.

7.13 A misleading omission can also occur where a trader fails to

identify the commercial intent of a practice, if it is not already

apparent from the context. The presence of a price, or of a

statement making it clear that the practice is commercial

(for example: ‘this is an advertisement’), are examples of

how commercial intent could be made clear.

7.14 When deciding whether a practice misleads by omission,

the courts will take account of the context.

MATERIAL INFORMATION

7.15 Material information is information that the average

consumer needs to have, in the context, in order to make

informed decisions. It includes any information required

by European (EC) derived law, such as the Package Travel,

Package Holidays and Package Tours Regulations

and the

Consumer Protection (Distance Selling) Regulations.

19 See the section on ‘context’ later in this chapter for more

information on how this might work in practice.

20 Statutory Instrument 1992/3288.

21 Statutory Instrument 2000/2334, as amended.

MISLEADING PRACTICES (REGULATIONS 5 AND 6) | PART 2 | 33

7.16 What information is required will depend on the

circumstances, for example what the product concerned is,

and where and how it is offered for sale. This may range from

a very small amount of information for simple products,

to more information for complex products.

7.17 The price of a product in most circumstances is material

information. Therefore, failing to provide this in a timely

fashion before a transactional decision is made is likely

to amount to a misleading omission. For example, in

restaurants, the prices of the food and drink available will

usually need to be given to consumers before they order.

7.18 Material information includes any information which causes

or is likely to cause the average consumer to take a different

decision about the product.

Examples:

A trader omits to mention that a contract has to run for a

minimum period, or that the consumer has to go on making

purchases in future, this would probably be a material

omission.

A trader advertises mobile phones for sale. If the phones

were second hand and/or had been reconditioned, this would

be material information, which would need to be made clear

to consumers.

A trader operates a car park. If he fails to clearly display the

price(s) of parking at a point before the consumer enters the

car park and incurs a charge, this would be failing to provide

material information.

A trader sells audio-visual equipment. He omits to inform

the consumer that a particular product includes only an

analogue tuner, and of the implications in the context of the

switch from analogue to digital-only television. This is likely to

be material information that the consumer needs to make an

informed decision.

CONTEXT

7.19 Consideration of the context includes any limitations of the

communication medium used (of space or time) that make

it impractical to give the necessary information. In such

circumstances, if other means have been used by the trader

to convey this information, these will be relevant.

34 | PART 2 | MISLEADING PRACTICES (REGULATIONS 5 AND 6)

Example:

A trader sells cereal bars. On their wrappers the trader

advertises a ‘t-shirt for £1’ offer. In fact, various conditions

apply (such as restrictions on the availability of the t-shirts).

The outside of the wrapper is too small to include all of this

information. The trader is less likely to commit a misleading

omission if he makes clear on the wrapper that terms and

conditions apply and provides details of where they can be

found.

INVITATIONS TO PURCHASE (regulation 6[4])

7.20 The CPRs make special provision for certain kinds of

commercial practice known as ‘invitations to purchase’.

They specify information that is automatically regarded as

material information unless it is apparent from the context.

Its omission may therefore lead to a misleading omission as

described in paragraph 7.12 above.

7.21 So, where traders make invitations to purchase they will

need to ensure that their commercial practices include the

information required by the CPRs, or that such information

is apparent from the context. This is not to say that such

information only needs to be provided where there can be

said to be an invitation to purchase. It may need to be

provided anyway if consumers need it to make an informed

decision. Failure to provide information that is needed for that

purpose can constitute a misleading omission, and thus make

a commercial practice unfair, whether or not an invitation

to purchase is involved. For more details on misleading

omissions generally see above paragraphs 7.12 – 7.19.

IDENTIFYING AN INVITATION TO PURCHASE

7.22 An invitation to purchase has the following elements:

• itisacommercialcommunication,and

• itindicatescharacteristicsoftheproduct concerned and

the price, in a way appropriate to the communication

medium used, and

• ittherebyenablestheconsumer to make a purchase.

7.23 The idea behind this concept is that the consumer is

given the key information he needs to make an informed

purchasing decision.

7.24 ‘Thereby enables’ primarily refers to enabling of a purchase

through the provision of information. The amount of

information that enables the consumer to make a purchase

will vary depending on the circumstances. Complex

products may require the provision of more information than

simple ones before a purchase is enabled.

22 The CPRs concept of ‘invitation to purchase’ is not

the same as the UK concept of ‘invitation to treat’.

MISLEADING PRACTICES (REGULATIONS 5 AND 6) | PART 2 | 35

7.25 The following will normally be invitations to purchase

where the product’s price and characteristics are given:

• anadvertisementinanewspaperwherepartofthe

advertisement is an order form that can be sent to the

trader

• aninteractiveTVadvertisementthroughwhichorderscan

be directly placed

• apageorpagesonawebsitewhereconsumers can

place an order

• amenuinarestaurantfromwhichconsumers can place

an order

• atextmessagepromotiontowhichconsumers can

directly respond in order to purchase the promoted

product

• aradioadvertisementforamobilephoneringtone,which

provides a word and number to text in order that the

consumer can purchase and pay for (via their phone bill)

the jingle to be uploaded to their device.

 • apriceonaproduct in a shop.

COMMERCIAL PRACTICES WHICH ARE NOT INVITATIONS

TO PURCHASE

7.26 It is important to note that if a communication is not an

invitation to purchase it may still mislead by omission if

it meets the conditions described in paragraph 7.12 above.

7.27 Where a commercial communication does not indicate the

characteristics of a speciﬁc product, through text, image or

otherwise, it will not be an invitation to purchase.

7.28 A commercial communication which does not include a price

is not an invitation to purchase.

7.29 Where a commercial communication does not ‘enable

the consumer to make a purchase’, then it will not be an

invitation to purchase.

7.30 In many cases, advertisements which promote a trader’s

‘brand’ rather than any particular product(s) will not be

invitations to purchase.

REQUIRED (MATERIAL) INFORMATION

7.31 The CPRs deem certain information to be ‘material’ where

traders make invitations to purchase. Subject to the same

considerations about the context and the limitations of the

communication medium as apply to misleading omissions

generally (see paragraph 7.19), that information must be

provided in a clear, unambiguous, intelligible and timely

manner, unless apparent from the context.

36 | PART 2 | MISLEADING PRACTICES (REGULATIONS 5 AND 6)

7.32 Where the required information is apparent from the context

then traders do not need to provide it separately. An example

of information which is likely to be apparent from the context

will be the address of a shop which the consumer is already

in.

7.33 Information that is deemed to be material in invitations to

purchase is set out in regulation 6(4), which is summarised

below:

• themaincharacteristicsoftheproduct – for example,

what it is and what it does – to the extent appropriate to

the medium used by the invitation to purchase and the

product

• theidentityofthetrader, such as his trading name, and

the identity of any other trader on whose behalf the

trader is acting

• thegeographicaladdressofthetrader or traders

• thepriceoftheproduct (including taxes) or, where the

price cannot be reasonably calculated in advance, the way

it will be calculated

• anyfreight,deliveryorpostalcharges,or,wherethese

cannot reasonably be calculated in advance, the fact that

such charges may be payable

• anyarrangementsforpayment,delivery,performance

(that is the way in which any work is to be carried out, or a

service provided) and complaint handling that differ from

the requirements of professional diligence

• theexistenceofanycancellationrights.

This is in addition to any other information the average

consumer needs, in the context, to make informed decisions

and any other information required under other Community

law provisions.

EXAMPLES OF INVITATIONS TO PURCHASE

7.34 The following are examples of how the information listed

in Regulation 6(4) might be provided in differing types of

invitation to purchase:

Pencil (a simple product)

A shop has a number of pencils for sale and displays the

price. This is an invitation to purchase because the

information given in the context of a shop enables the

consumer to make a purchase (by taking the pencil to

the till and paying for it). The pencils themselves ‘indicate’

their characteristics (that they are pencils), and the pencils

together with the price ticket / label are the commercial

communication.

In this instance, the material information required is provided

23 See paragraph 7.24 above.

MISLEADING PRACTICES (REGULATIONS 5 AND 6) | PART 2 | 37

on the pricing label or is already apparent from the context.

The main characteristics of the product – such as the colour

or thickness of the lead – are apparent from looking at it. The

trader trades under his own name and is based in the shop

(the address), the price is given, there are no arrangements

for payment, delivery, performance or complaint handling

that differ from those that consumers would reasonably

expect. There are no omissions of cancellation rights or

information requirements under other Community law

provisions.

Price list in a bar

A licensed premises offers various drinks for sale to

consumers. The price list (which is the commercial

communication) placed near the bar provides consumers

with the information they need to enable them to purchase

drinks, in that it tells consumers what drinks are available

and their price.

In this instance, the main characteristics are the name (and

possibly the name of the brand) of the drinks available. The

trader’s identity and the name of the establishment are given

on the price list, and the address is apparent from the context

(because consumers are already at the address). There are

no delivery or other arrangements which are contrary to the

requirements of professional diligence that need noting.

Mail order advertisement

An advertisement in a magazine features T-shirts for sale.

The prices and sizes of the T-shirts available are given in the

advertisement, and the bottom half of the advertisement is

an order form which can be ﬁlled in, with payment enclosed,

and sent direct to the retailers. This would be an invitation to

purchase.

Here, the main characteristics of the product are included

in the advertisement – such as the size, material and colour).

The trader’s identity is stated in the advertisement, as

is his geographical address. So, too, are payment and

delivery arrangements. The advertisement also mentions

the consumer’s entitlement to cancel any order and the

period for which the advertised price would be valid, given

this is a contract concluded by mail order and the Consumer

Protection (Distance Selling) Regulations 2000 apply (see

page 33, paragraph 7.15).

38 | PART 2 | MISLEADING PRACTICES (REGULATIONS 5 AND 6)

Car

A car showroom has a used car on display for sale. The price

is shown clearly on the car. This (the car and the price) would

be an invitation to purchase, because the information given

in the context of the showroom enables the consumer to

make a purchase, by asking to purchase the car and paying

for it within the showroom.

Here, the main characteristics of the product are included

in the sales card or are already apparent from the context,

such as the make, model, accurate mileage, engine

capacity, colour and other physical characteristics of the car.

The trader’s identity is apparent from information in the

showroom, the price is given on a sign on the car and there

are no arrangements for payment, delivery, performance

or complaint handling, that differ from the requirements of

professional diligence. The car can be purchased and taken

from the showroom, and returned there if complaints arise.

There are no omissions of cancellation rights or information

requirements under other Community law provisions.

Computer (a complex product)

A trader sells computers from his website. The site’s

homepage pictures the range of computers sold by the

trader. Each picture provides a link to a detailed page which

gives the speciﬁcations (characteristics) of the relevant

computer and that page also gives its full price and has a

‘buy now’ button (by clicking on which the computer may be

purchased). This detailed page is an invitation to purchase.

On separate pages on the website that can be reached via a

clearly-indicated link on the detailed page, are:

• themaincharacteristicsofthecomputer(forexamplethe

processor, memory, graphics, software and accessories)

including its function (for example ‘home multimedia’ or

‘games package’)

• thefullprice(inclusiveoftaxesandanyfreightordelivery

charge) if this was not given on the previous page

• thetrader’s name and geographic address

• thedeliveryandpaymentarrangementsaswellasthe

complaints/after-sales procedures, and

 • sincethecomputerisbeingsoldovertheinternet,

information required by the Electronic Commerce

(EC Directive) Regulations 2002

and The Consumer

Protection (Distance Selling) Regulations 2000

, including

cancellation rights

24 Statutory Instrument 2002/2013.

25 Statutory Instrument 2000/2334, as amended.

MISLEADING PRACTICES (REGULATIONS 5 AND 6) | PART 2 | 39

CHAPTER 8

AGGRESSIVE

COMMERCIAL

PRACTICES

(REGULATION 7)

8.1 The CPRs also prohibit aggressive commercial practices

(as detailed in regulation 7)

. These are practices that, in the

context of the particular circumstances, intimidate or exploit

consumers, restricting their ability to make free or informed

choices. In order for an aggressive practice to be unfair it

must cause or be likely to cause the average consumer to

take a different decision.

PROHIBITION ON AGGRESSIVE PRACTICES

8.2 The CPRs prohibit commercial practices which

• byharassment,coercion(includingphysicalforce)or

undue influence,

• signicantlyimpair,orarelikelytosignicantlyimpair,

the average consumer’s freedom of choice or conduct

concerning the product,

and

• Theaverage consumer takes, or is likely to take, a

different decision as a result

These elements are described below.

HARASSMENT, COERCION AND UNDUE INFLUENCE

8.3 Harassment and coercion are not expressly deﬁned in the

CPRs but include both physical and non-physical, (including

psychological) pressure.

8.4 Undue influence is deﬁned in regulation 7(3)(b) of the CPRs as:

‘exploiting a position of power in relation to the consumer

so as to apply pressure, even without using or threatening

to use physical force, in a way which signiﬁcantly limits the

consumer’s ability to make an informed decision’.

An example of this might be a mechanic who has a

consumer’s car at his garage and has done more work than

agreed, and who refuses to return the car to the consumer

until he is paid in full for the work. The mechanic did not check

with the consumer before he went ahead with the extra

work. As he has the car, he has power over the consumer’s

decision to pay for the unauthorised work. He has exploited

his position of power, by demanding payment for doing more

than was agreed and refusing to return the vehicle until the

consumer has paid for all the work.

Another example might be a trader selling credit

who

pressurises an existing borrower to take out an additional

loan. This could amount to harassment, coercion or undue

inﬂuence.

See the glossary for more information.

26 The prohibition is contained in regulations 3(1) and 3(4)(c) of

the CPRs.

27 Additional examples of unfair (including aggressive) debt

collection practices can be found in the OFT’s Debt collection

guidance – OFT 664.

AGGRESSIVE COMMERCIAL PRACTICES (REGULATION 7) | PART 2 | 41

SIGNIFICANT IMPAIRMENT OR LIMITATION

8.5 The CPRs refer to practices that ‘signiﬁcantly impair’ and

those that ‘signiﬁcantly limit’ decisions (the latter is in the

deﬁnition of undue influence). These are likely to have a very

similar meaning and both will depend on the context.

8.6 Signiﬁcant impairment might occur when, for example, a

trader stays in a consumer’s home for so long that they feel

compelled to sign a contract for a product.

FREEDOM OF CHOICE OR CONDUCT

8.7 The concept of freedom of choice is not limited solely to

decisions about whether to purchase a product or not. It

covers a wide range of choices that are likely to impact on

transactional decisions.

8.8 For example, coercion might cause consumers to purchase

the product at a much higher price or on disadvantageous

terms. Breaches of the CPRs could occur even if:

• consumers might still have bought the product from the

same trader, but on different terms

 • consumers might still have bought the product, but from

a different trader.

FACTORS INDICATING AN AGGRESSIVE PRACTICE

8.9 The CPRs list factors which shall be taken into account when

determining whether a commercial practice is aggressive.

It is not necessary for all of these factors to be present for

a practice to be aggressive and therefore unfair (provided

that the commercial practice uses harassment, coercion or

undue influence).

8.10 The factors are:

(a) Timing, location, nature or persistence,

(b) The use of threatening or abusive language or behaviour,

circumstance, of such gravity as to impair the consumer’s

judgement, of which the trader is aware, to inﬂuence the

consumer’s decision with regard to the product,

(d) Any onerous or disproportionate non-contractual barriers

imposed by the trader where a consumer wishes to

exercise rights under the contract, including rights to

terminate a contract or switch to another product or

trader,

(e) Any threat to take any action that cannot legally be taken.

28 This practice could also breach paragraph 25 of Schedule

1 to the Regulations, the list of practices that will always

be unfair – ‘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,

under national law, to enforce a contractual obligation’.

42 | PART 2 | AGGRESSIVE COMMERCIAL PRACTICES (REGULATION 7)

POSSIBLE AGGRESSIVE PRACTICES

8.11 The examples below assume that the average consumer

would or would be likely to take a different decision as a

result of the practice(s) described.

Staff working in a funeral parlour put pressure on a recently

bereaved relative, who is deciding on a cofﬁn, to buy a more

expensive cofﬁn to avoid bringing shame on the family. This

could amount to coercion or undue inﬂuence. (Exploitation

of speciﬁc misfortune, and timing)

A trader takes consumers to a holiday club presentation at a

distant location, with no apparent return transport unless the

consumers sign a contract. This could amount to coercion

and/or undue inﬂuence. (Nature / location)

A doorstep trader pressures a consumer to pay in cash

for home repairs immediately. He insists on giving the

consumer a lift to the bank to withdraw the money. This

could amount to coercion or undue inﬂuence. (Nature,

persistence, location)

A debt collector

pressurises existing borrowers/debtors

to repay a debt, for example, by contacting debtors at

unreasonable times (such as late at night) or at unreasonable

locations (such as at work when they have been requested

not to). This could amount to harassment, coercion or

undue inﬂuence. (Timing, persistence, nature and location,

exploitation of circumstances – this might amount to

exploitation of the imbalance of power between the creditor

and debtor, as well as of the speciﬁc circumstances of the

debtor)

A debt collector threatens consumers with recovery of

money by bailiffs for unenforceable debts.

This could

amount to harassment, coercion or undue inﬂuence.

(Exploitation of circumstances and threat to take action

which cannot legally be taken)

29 Additional examples of unfair (including aggressive)

debt collection practices can be found in the OFT’s Debt

collection guidance – OFT 664.

30 This could also breach the prohibitions on misleading

actions as well as the prohibition on aggressive practices.

AGGRESSIVE COMMERCIAL PRACTICES (REGULATION 7) | PART 2 | 43

CHAPTER 9

PROMOTING UNFAIR

PRACTICES IN

CODES OF CONDUCT

9.1 The CPRs also prohibit the promotion of unfair commercial

practices by a code owner in a code of conduct

(see regulation 4).

9.2 Note that there is no criminal offence attached to this

prohibition. Any enforcement action, if needed, will be taken

through the civil route via Part 8 of the Enterprise Act 2002.

Action will be against the relevant code owner (including, in

some situations, speciﬁc individuals).

9.3 In order for this prohibition to be infringed, the code owner

must in a code of conduct promote a practice that is unfair

as determined by one (or more) of the other prohibitions

contained in the CPRs.

9.4 Enforcers are likely to rely on this prohibition where the

promotion takes the form of a statement in the code of

conduct and altering the code of conduct is therefore likely

to be a more effective method of dealing with the unfair

practice than taking action against any individual trader or

traders who are engaging in the practice.

POSSIBLE UNFAIR PRACTICES PROMOTED BY A CODE

OF CONDUCT

9.5 A code owner is responsible for a code of practice relating

to the online sale of personal computers. The code states that

there is no need for member businesses to give a geographic

address when advertising in any circumstances. As this a

material omission in certain circumstances, promotion of the

resulting commercial practice via this statement would be

prohibited.

PROMOTING UNFAIR PRACTICES IN CODES OF CONDUCT | PART 2 | 45

CHAPTER 10

GENERAL PROHIBITION

OF UNFAIR COMMERCIAL

PRACTICES

(REGULATION 3)

FAILING TO ACT IN ACCORDANCE WITH REASONABLE

EXPECTATIONS OF ACCEPTABLE TRADING PRACTICE

10.1 Regulations 3(1) and 3(3) of the CPRs set out the general

prohibition on unfair business to consumer commercial

practices, also known as the general duty not to trade

unfairly. This prohibition allows enforcers to take action

against unfair commercial practices, including those that

do not fall into the more speciﬁc prohibitions of misleading

and aggressive practices, or into the very speciﬁc banned

practices. This means it acts as a safety net. It is designed

to ‘future-proof’ the protections in the CPRs, by setting

standards against which all existing and new practices can

be judged.

GENERAL PROHIBITION

10.2 The general prohibition is made up of two tests. It prohibits

practices that:

• contravenethe requirements of professional diligence

and

 • materiallydistorttheeconomicbehaviouroftheaverage

consumer with regard to the product

(or are likely to).

10.3 The ﬁrst test is concerned with the conduct itself – that is the

standards of the trader’s practice. The second is concerned

with the actual or likely effect the practice has on the average

consumer’s economic behaviour.

TEST 1: PROFESSIONAL DILIGENCE

10.4 Professional diligence is deﬁned (in Regulation 2) as:

‘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’.

10.5 Professional diligence is an objective standard which

will vary according to the context. The word ‘special’ is not

intended to require more than would reasonably be expected

of a trader in their ﬁeld of activity. However, poor current

practice that is widespread in an industry/sector cannot

amount to an acceptable objective standard. That is because

this is not what a reasonable person would expect from

a trader who is acting in accordance with honest market

practice or good faith.

GENERAL PROHIBITION OF UNFAIR COMMERCIAL PRACTICES (REGULATION 3) | PART 2 | 47

10.6 The CPRs do not deﬁne honest market practice or good faith.

They are similar and overlapping principles. They require

traders to approach transactions professionally and fairly as

judged by a reasonable person.

10.7 Guidance and codes of practice, including OFT-approved

codes, may be drawn upon to help establish whether a

trader is behaving in a professionally diligent manner.

However, complying with these codes and Guidance may not

be necessary, or, alternatively, sufﬁcient of itself in order for a

trader to be professionally diligent.

TEST 2: MATERIAL DISTORTION

10.8 Material distortion is deﬁned (in Regulation 2) as:

‘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’. It applies either when a practice distorts or

is likely to distort the average consumer’s behaviour.

10.9 ‘Material distortion’ means that a practice impairs the

average consumer’s ability to make an informed decision.

The impairment must be signiﬁcant enough to change the

decisions the average consumer makes. This means that

practices that do not affect, or are unlikely to affect, the

economic behaviour of average consumers are unlikely

to be unfair under the general prohibition in the CPRs.

10.10 The CPRs deﬁne ‘the average consumer’ by reference

to the concepts of the ‘average’ consumer, the ‘average’

member of a targeted group of consumers and the ‘average’

member of a vulnerable group of consumers. Different types

of average consumer may react differently to the same

practice. These concepts, and their relation to each other,

are discussed in the Glossary.

48 | PART 2 | GENERAL PROHIBITION OF UNFAIR COMMERCIAL PRACTICES (REGULATION 3)

PART 3

CHAPTER 11

COMPLIANCE AND

ENFORCEMENT

11.1 Local Authority Trading Standards Services (TSS), the

Department of Enterprise, Trade and Investment in Northern

Ireland and the OFT have a duty to enforce the CPRs. This

does not mean that (civil or criminal) enforcement action

must be taken in respect of each and every infringement.

Instead, enforcers should promote compliance by the most

appropriate means, in line with their enforcement policies,

priorities and consistent with available resources.

11.2 Enforcers can use a range of tools to ensure that businesses

are complying with CPRs. The main options, which are

explained below, are:

• education,adviceandguidance

• establishedmeans

• codesofconduct

• civilenforcement

 • criminalenforcement.

11.3 When considering action under the CPRs enforcers will have

regard to the principles of proportionality, accountability,

consistency, transparency and targeting and where formal

enforcement action is taken this should seek to:

• changethebehaviouroftheoffender

• eliminateanynancialgainorbenetfromnon-

compliance

• beresponsiveandconsiderwhatisappropriateforthe

particular offender and regulatory issue

• beproportionatetothenatureoftheoffenceandtheharm

caused

• restoretheharmcausedbytheregulatorynon-

compliance, where appropriate, and

 • deterfurthernon-compliance.

11.4 Enforcers taking action under the CPRs will act in accordance

with the Regulators’ Compliance Code in carrying out

enforcement action.

EDUCATION, ADVICE AND GUIDANCE

11.5 The OFT will generally seek to obtain compliance by

education, giving advice and guidance in the ﬁrst instance

unless circumstances indicate that enforcement action

is the appropriate ﬁrst step which may include a criminal

investigation and prosecution.

Other enforcers may have

their own enforcement policies in this regard.

COMPLIANCE AND ENFORCEMENT | PART 3 | 51

31 The Regulators’ Compliance Code only applies to the

enforcement of the CPRs in England, Scotland and Wales

and not Northern Ireland where consumer protection

is devolved. See section 24(3) of the Legislative

and Regulatory Reform Act 2006 and article 4 of The

Legislative and Regulatory Reform (Regulatory Functions)

Order 2007 Statutory Instrument 2007/3544.

32 See the OFT’s Statement of consumer protection

enforcement principles – OFT 964.

‘ESTABLISHED MEANS’

11.6 There are alternative well-founded and effective systems

of regulation (including self-regulation) in place in the UK. If

enforcers are satisﬁed that complaints and cases are clearly

within the scope of these systems and can be adequately

dealt with by them, they will be able to refer such complaints

and cases to the relevant body (to ensure that businesses

comply with the CPRs).

11.7 As under the previous consumer protection regime, the

Advertising Standards Authority (ASA) and PhonepayPlus are

considered to be established means in the areas described

below, and appropriate cases falling within their areas of

expertise will usually be referred to them for action.

11.8 TheASAregulatesallTVandradioadvertisementsunder

theBroadcastCommitteeofAdvertisingPractice(BCAP)TV

Advertising Standards Code and the BCAP Radio Advertising

Standards Code. The ASA also regulates advertisements in

non-broadcast media (for example print, posters, cinema,

direct marketing and online, such as banner and pop-ups ads)

under the British Code of Advertising, Sales Promotion and

Direct Marketing (the CAP Code). All of the Codes can be

accessed at www.cap.org.uk/cap/codes

11.9 The ASA is considered as the ‘established means’ for

ensuring compliance with the CPRs and BPRs

in non-

broadcast advertising. For broadcast advertising, the ASA

(Broadcast) and BCAP are formally contracted under a co-

regulatorypartnershipwithOfcomtoregulateTVandradio

commercials. ASA(B) and BCAP’s responsibility for protecting

consumers from misleading advertising is therefore derived

from the Communications Act 2003 and Ofcom operates as

the backstop to the system.

11.10 PhonepayPlus (formerly ICSTIS) is responsible for regulating

premium rate telephony services in the UK. Premium rate

services can be deﬁned as those which offer some form of

content, product or service that is charged to a user’s phone

bill. PhonepayPlus regulates content, promotion and overall

operation of these services as an agency of Ofcom, as

designated under s120 (1) of the Communications Act 2003.

11.11 Where the remits of ASA and PhonepayPlus overlap in

relation to the promotion of a premium rate telephony

service, the two organisations will work together to ensure

an appropriate solution.

52 | PART 3 | COMPLIANCE AND ENFORCEMENT

33 The Business Protection from Misleading Marketing

Regulations 2008 (Statutory Instrument 2008/1276), which

have in effect replaced the business to business elements

of the Control of Misleading Advertisements Regulations

1988 (as amended), and of the Trade Descriptions Act 1968.

CODES OF CONDUCT

11.12 Enforcers may, where appropriate as a means of seeking

to prevent or stop breaches of the CPRs, enlist the help of

those responsible for self-regulatory codes of conduct, or

practice, adopted by businesses to govern their dealings with

consumers. This would include a range of self-regulatory

codes, and those approved by the OFT under its Consumer

Codes Approval Scheme (CCAS).

The OFT has updated its

core criteria for these approved codes in line with the CPRs.

11.13 The CPRs prohibit code owners from using their codes

to promote unfair commercial practices.

11.14 A trader who has agreed to be bound by a self-regulatory

code of conduct may breach the CPRs if he fails to comply

with commitments in the code which are ﬁrm, capable of

being veriﬁed, and not purely aspirational, when he has

indicated in a commercial practice that he is bound by the

code and consumers’ transactional decisions are (likely to

be) affected by this.

11.15 The two prohibitions above are enforceable only via injunctive

civil action and are not subject to criminal sanctions.

CIVIL ENFORCEMENT

11.16 Enforcers may take civil enforcement action in respect of any

breach of the CPRs as Community Infringements (breaches

of EU-derived legislation) under Part 8 of the Enterprise Act

2002. Currently, a number of bodies, including the OFT and

TSS can take enforcement action in this way.

11.17 Under this procedure, enforcers may apply to a court for

an enforcement order to prevent Community or domestic

infringements. Breach of an enforcement order could be

contempt of court which could lead to up to two years

imprisonment and/or an unlimited ﬁne.

11.18 Enforcers will normally seek to stop an infringement through

consultation with the trader before applying to the court for

an enforcement order. Instead of seeking an order, they may

accept an undertaking from the trader not to engage in or

repeat the conduct constituting an infringement.

11.19 Further information on enforcement under Part 8 of the

Enterprise Act 2002 is contained in the OFT’s published

Guidance on this subject.

11.20 Courts can order a trader to produce evidence to

substantiate a factual claim made in a commercial practice.

COMPLIANCE AND ENFORCEMENT | PART 3 | 53

34 More details on the OFT CCAS scheme can be found at:

www.oft.gov.uk/Codes/default.htm

35 See www.oft.gov.uk/shared_oft/

Approvedcodesofpractice/oft390.pdf for more details.

36 The full list of enforcers for Part 8 of the Enterprise Act

2002 can be found on BERR’s website, www.berr.gov.

uk/consumers/enforcement/orders/index.html Details

can also be found in the OFT’s Guidance: Enforcement of

Consumer Protection Legislation – Guidance on Part 8 of

the Enterprise Act – OFT 512.

37 This is available on the OFT website: www.oft.gov.uk

TRADERS OFFERING CREDIT

11.21 There is likely to be some overlap of practices prohibited by

the CPRs and the provisions relating to ‘unfair relationships’

introduced by the Consumer Credit Act 2006. Enforcement

action in this area of overlap may be taken under either or

both pieces of legislation. The OFT has published Guidance

indicating how it expects the unfair relationships provisions

to interact with Part 8 of the Enterprise Act 2002.

CONSUMER PROTECTION COOPERATION REGULATION

11.22 The EC Regulation on Consumer Protection Cooperation

(2006/2004) (CPC)

creates a network of public consumer

protection enforcers (competent authorities) throughout the

European Community.

11.23 Within the European Community unfair practices should be

dealt with by enforcers in the jurisdiction where the trader

responsible for the practice is situated. The Regulation

allows Member States to share information and to request

enforcement action to be taken to stop breaches of the

legislation implementing the UCPD (the CPRs in the UK)

and other Community consumer protection rules. This could

result in cross-border referrals both to and from the UK.

11.24 In the UK, the OFT is the single liaison ofﬁce, responsible for

co-ordinating initial requests for information and referrals of

cases.

54 | PART 3 | COMPLIANCE AND ENFORCEMENT

38 Unfair relationships – enforcement action under Part 8 of

the Enterprise Act - OFT 854, also available on the OFT

website: www.oft.gov.uk

39 Regulation (EC) No. 2006/2004 of the European

Parliament and the Council of 27 October 2004.

40 See OFT Guidance: The EU Regulation on Consumer

Protection Cooperation (the CPC) – on-site inspection

powers OFT858.

41 A complete list of UK enforcers for the CPC can be found

at: www.oft.gov.uk/news/press/2007/3-07

CHAPTER 12

CRIMINAL

OFFENCES

12.1 The CPRs also contain criminal offences.

In England, Wales and Northern Ireland prosecutions will

generally be conducted by:

• theOFT

• WeightsandMeasuresauthorities(TSS)

• theDepartmentofEnterprise,TradeandInvestmentin

Northern Ireland

• InScotland,prosecutionsareconductedbytheCrown

Ofﬁce and Procurator Fiscal Service on behalf of the Lord

Advocate.

12.2 The offences are:

• contraventionofrequirementsofthegeneralprohibition–

see chapter 10 on the general prohibition

• misleadingactions(except5(3)(b)–codecommitments)–

see chapter 7 on misleading practices

• misleadingomissions(includingtheomissionofspecied

information in invitations to purchase) – see chapter 7 on

misleading practices

• aggressivepractices–seechapter8onaggressive

practices

 • specicunfaircommercial practices (Schedule 1) apart

from numbers 11 and 28 – see chapter 6 on banned

practices.

12.3 The offences above are all strict liability offences, apart from

contravention of the general prohibition, which requires proof

of mens rea.

12.4 For strict liability offences it need only be shown that there

has been a prohibited act or omission.

12.5 For a person to be convicted of a contravention of the general

prohibition, which is a mens rea offence, it must also be

shown that he had a speciﬁed state of mind. The speciﬁed

state of mind will be knowledge or recklessness in engaging

in a commercial practice which fails to comply with the

requirement of professional diligence.

12.6 In the case of a prosecution for contravening the general

prohibition, the mental element (‘knowingly or recklessly’)

only needs to be shown in relation to contravention of ‘the

requirements of professional diligence’. It does not need to

be shown in relation to the effect on the average consumer,

assessed against the material distortion and transactional

decision concepts.

56 | PART 3 | CRIMINAL OFFENCES

42 This is a legal term implying a mental element in the

offence, for example knowledge or recklessness.

BODIES OF PERSONS

12.7 Where a body corporate commits an offence with the consent

or connivance of an ofﬁcer of that body, both the ofﬁcer and

the body corporate can be prosecuted and punished. The

same applies if the offence is attributable to neglect on the

part of the ofﬁcer. Where a Scottish partnership commits an

offence with the consent or connivance of a partner or due

to neglect on the part of a partner, both the partner and the

partnership can be prosecuted and punished.

ACT OR DEFAULT OF ANOTHER

12.8 If a person commits an offence (other than a breach of the

general prohibition) or would have done but for the defences

discussed below, and this is due to the act or default of

another person, that other person can also be charged with

an offence under the CPRs, regardless of whether action is

taken against the original offender. That other person may

seek to rely on the defences discussed below.

Penalties

12.9 The penalties are:

• onsummaryconviction,anenotexceedingthe

statutory maximum

• onconvictiononindictment,aneorimprisonmentnot

exceeding two years or both.

TIME LIMITS

12.10 Time limits for prosecution apply, either within three years of

the offence taking place, or within one year of the discovery

of the offence by the prosecutor, whichever is earlier.

DEFENCES

12.11 Breach of most of the prohibitions contained in the CPRs

means that an offence may have been committed, unless

one of the following defences can be shown. The defences

available for the strict liability offences are those of due

diligence and innocent publication.

DUE DILIGENCE

12.12 To be able to rely on the defence of due diligence, for

offences under Regulations 9 (misleading actions), 10

(misleading omissions), 11 (aggressive commercial

practices) and 12 (speciﬁc unfair commercial practices

– that is the practices listed in paragraphs 1-10, 12-27, and

29-31 of Schedule 1 to the Regulations) the person accused

must prove that the commission of the offence was due

to a mistake, reliance on information given by another

person, the act or default of another, an accident, or another

CRIMINAL OFFENCES | PART 3 | 57

43 This is currently (as of 2007) £5,000.

44 See above for the list of prohibitions which are covered

by criminal offences.

cause beyond his control, and, in addition, that he took all

reasonable precautions and exercised all due diligence to

avoid committing the offence or to avoid someone under his

control committing it. The enforcer prosecuting the offence

must be given written notice of a defence based on the

actions of a third party seven days in advance of the hearing.

It is not sufﬁcient to show that due diligence procedures are

in place, it is also necessary to show that they are applied in

practice. Courts are likely to expect different standards of due

diligence from businesses of different sizes.

12.13 The mens rea offence of breaching the general prohibition

does not have the due diligence defence, because the

offence already requires proof of a certain state of mind.

INNOCENT PUBLICATION

12.14 An alternative defence in cases involving use of

advertisements (including catalogues, circulars and

price-lists) is that of innocent publication. For offences

under Regulations 9 (misleading actions), 10 (misleading

omissions), 11 (aggressive commercial practices) and 12

(speciﬁc unfair commercial practices – that is the practices

listed in paragraphs 1-10, 12-27, and 29-31 of Schedule 1 to

the Regulations) the person accused who wishes to rely on

this defence must prove that he is a person whose business

is to publish or arrange publication of advertisements,

he received the advertisement in the ordinary course of

business, and that he did not know and had no reason to

suspect that the publication would amount to an offence.

12.15 The general prohibition does not have this defence.

Examples

Offence and defence

A trader sells printer ink cartridges. Some of his cartridges are

found to contain blue ink instead of the advertised black ink.

The advertisement would probably amount to a misleading

statement under the CPRs. However, if the trader could

show he had taken all reasonable steps to ensure that the

cartridges only contained black ink (possibly by demonstrating

that his processes had high levels of quality assurance and

safeguards), and that the blue ink had been a genuine mistake,

then he would be able to rely on the due diligence defence.

Mens Rea

A trader breaches the general prohibition by acting contrary

to the requirements of professional diligence and distorting

consumer decisions. In order to prosecute, enforcers would

need to show that he had engaged in the practice knowingly

or recklessly. If the practice was well known to be unfair, or

unprofessional, then it would be easier to demonstrate that

the trader engaged in it knowingly or recklessly.

58 | PART 3 | CRIMINAL OFFENCES

CHAPTER 13

INVESTIGATIVE

POWERS

13.1 The CPRs provide investigation powers for use by the OFT,

TSS and the Department of Enterprise, Trade and Investment

in Northern Ireland. These powers are modelled on those that

exist at present for the enforcement of the Trade Descriptions

Act 1968, although these have been modernised.

TESTING OF PRODUCTS

13.2 Enforcement ofﬁcers have the power to check compliance

with the CPRs by purchasing or securing the provision of

products.

ENTRY TO PREMISES

13.3 Enforcement ofﬁcers can also enter premises under certain

circumstances.

14.4 Enforcement ofﬁcers are able at all reasonable hours and

without a warrant:

(a) to inspect goods, and to enter premises which are not

used only as a dwelling, in order to ascertain whether a

breach has been committed

(b) to require traders to produce any documents relating to

their business (including documents held on a computer),

to take copies and to require that documents be produced

in a legible form, if they have reasonable cause to suspect

that a breach has been committed in order to ascertain

whether this is the case

cause to believe that a breach has been committed in

order to ascertain, by testing or otherwise, whether this

is the case.

13.5 Enforcement ofﬁcers can also seize and detain goods or

documents without a warrant if they have reason to believe

these may be required as evidence in proceedings against

a person for a breach. This power – along with that in (c) –

may include the power to break open containers or require

another person to do so.

13.6 Enforcement ofﬁcers under a warrant are also able to enter

premises that are dwelling premises. A warrant to enter

premises (whether it be for a dwelling or non-dwelling

premises) can only be granted by a justice of the peace (or

their equivalents in Scotland and Northern Ireland) who is

satisﬁed that there are reasonable grounds for believing that

the following conditions are met:

• therearegoodsordocumentsonthepremiseswhich

an enforcement authority has power to inspect and their

inspection is likely to disclose evidence of a breach of the

CPRs, or a breach of the CPRs has been, is being, or is

about to be committed on any premises,

60 | PART 3 | INVESTIGATIVE POWERS

and

 • eitheradmissiontothepremiseshasbeenorislikelyto

be refused and a notice of intention to apply for a warrant

has been given; or applying for admission or giving a

notice of intention to apply for a warrant would defeat the

object of the entry; or the premises are unoccupied; or

the occupier is absent and it might defeat the object of the

entry to await his return.

13.7 Should an enforcement ofﬁcer enter premises under a

warrant, he is required to produce the warrant to the occupier

of the premises.

13.8 In entering any premises either with or without a warrant,

an enforcement ofﬁcer may take with him any persons and

equipment that he deems necessary. For example, the

authorised ofﬁcer may take portable computer equipment

and tape recording equipment.

13.9 The powers set out above which are available to enforcement

authorities relate to a breach of the CPRs and do not

determine how the breach will be tackled – which could be

either through criminal or civil means. Enforcers using these

powers for criminal proceedings must however comply

with the Police and Criminal Evidence Act 1984 and the

accompanying codes of practice.

13.10 Enforcement authorities are also obliged in speciﬁed

circumstances to notify traders of the results of any test

conducted on goods purchased or seized and detained

pursuant to the inspection powers; and to compensate

owners of goods seized who suffer loss because those

goods are lost, damaged or deteriorate. The requirement to

compensate persons having an interest in the goods only

applies where there has been no breach of the Regulations in

respect of those goods and the seizure is not due to neglect

or default by the person concerned.

13.11 Any intentional obstruction of an ofﬁcer of an enforcement body,

or making false statements to an ofﬁcer, is a criminal offence.

INVESTIGATIVE POWERS | PART 3 | 61

45 See http://police.homeofﬁce.gov.uk/operational-policing/

powers-pace-codes/pace-code-intro/ for more information.

PART 4

USING THE GUIDANCE | PART 1 | 63

CHAPTER 14

GLOSSARY

14.1 This section provides deﬁnitions and explanations of

concepts and words used in the CPRs. Most deﬁnitions can

be found in regulation 2 of the CPRs.

AVERAGE CONSUMER

14.2 The CPRs deﬁne the average consumer by reference to

the concepts of the ‘average’ consumer, the ‘average

member’ of a targeted group

of consumers, and the

‘average member’ of a vulnerable group of consumers.

See below (paragraphs 14.28 -14.37) for information on

these concepts.

COMMERCIAL PRACTICES

14.3 The CPRs apply to commercial practices. These are deﬁned

as ‘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’.

14.4 Commercial practices may include matters such as

advertising, sales, supplies and post-contractual matters

such as after-sales services and debt collection. They would

also include business practices where the business is

buying a product from a consumer. This would include a

representation by a trader in connection with the purchase

of a used car or an antique from a consumer. The deﬁnition

of a product is very broad – please see PRODUCT, below.

14.5 A practice is governed by the CPRs if it is directly connected

with the promotion, sale or supply of a product to consumers.

This means that although a trader may not be selling to

consumers himself, he may still have to take into account the

CPRs to the extent that a practice he engages in is directly

connected with the promotion, sale or supply of a product

to consumers. See chapter 4 on Scope for more details.

CODE OF CONDUCT AND CODE OWNER

14.6 The CPRs deﬁne a code of conduct as ‘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’.

14.7 A code owner is deﬁned as ‘a trader or 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’.

64 | PART 4 | GLOSSARY

46 This is shorthand for the text in Regulation 2(2).

14.8 Please refer to the chapter on compliance and enforcement

for further details of the role of codes in enforcing the CPRs.

CONSUMER

14.9 The CPRs deﬁne a consumer as ‘any individual who in

relation to a commercial practice is acting for purposes

which are outside his business’.

14.10 Generally, breaches of the CPRs are assessed by reference to

different types of consumer that might be affected by unfair

practices. These are the ‘average’ consumer, the ‘average

member’ of a targeted group and the ‘average member’

of certain types of vulnerable groups. See the end of this

chapter for more information on these different types.

14.11 A sole trader or a partner in a ﬁrm would only beneﬁt from

the protection provided by the CPRs where, and to the extent

that, he is acting for purposes outside of his trade, business,

craft or profession.

INVITATION TO PURCHASE

14.12 The CPRs deﬁne an invitation to purchase as ‘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’.

14.13 These are certain types of commercial communication,

including some advertising, where speciﬁed information

must be given to consumers, unless apparent from the

context. See the chapter on misleading omissions for more

detail.

MATERIAL DISTORTION

14.14 The CPRs deﬁne ‘materially distort the economic behaviour’

‘in relation to an average consumer’ as ‘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.’

14.15 Where the practice is being assessed against the vulnerable

consumer concept, it is the behaviour of the average

member of the relevant group of vulnerable consumers that

must be (or be likely to be) materially distorted in order for the

relevant test to be met.

GLOSSARY | PART 4 | 65

14.16 This concept is relevant (only) in assessing potential breaches

of Regulation 3, or when assessing if the protections

for vulnerable consumers are relevant to the practice.

As is apparent from the deﬁnition, material distortion

is comprised of an appreciable impairment test and a

transactional decision test. See the chapter on the general

prohibition of unfair commercial practices for more detail.

PRODUCT

14.17 The CPRs deﬁne a product as ‘any goods or service’ and

includes immovable property, rights and obligations.

14.18 This broad deﬁnition covers both physical and intangible

things. For example: a pencil, a car, music purchased online,

a right to use a caravan for a certain period, membership

of a club and premium rate phone calls would all fall within

the deﬁnition. Immovable property is included, and so the

CPRs apply to the practices of traders concerned with the

sale or lease of land to consumers. The provision of credit to

consumers is also covered.

PROFESSIONAL DILIGENCE

14.19 The CPRs deﬁne professional diligence as ‘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’. A simple way

of understanding professional diligence would be to ask:

‘Is the trader acting to a standard that a reasonable person

would expect?’

TRADER

14.20 The CPRs deﬁne a trader as ‘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’.

14.21 This includes companies. It could also include individuals

who regularly sell goods from their homes on the internet

using auction websites. The assessment of whether or not

the individual is acting as a trader will depend on whether or

not the relevant activity is done in the course of business.

An individual person selling goods on the internet, merely as

a means by which to dispose of unwanted goods from time

to time, would not be likely to fall within this deﬁnition.

66 | PART 4 | GLOSSARY

14.22 Whether or not a person is a trader in any particular

circumstance must be assessed on a case by case basis.

When determining whether or not a person is acting as a

trader, the courts are likely to take a number of factors into

account, such as whether there is a proﬁt-seeking motive,

the number and frequency of transactions, and the time

between the purchase and sale of products.

TRANSACTIONAL DECISION

14.23 The CPRs deﬁne a transactional decision as ‘any decision

taken by a consumer whether it is to act or 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’.

This Guidance uses ‘take a different decision’ as a short-hand

for a transactional decision that an average consumer

would not have taken otherwise.

14.24 ‘Transactional decision’ is an important concept covering

a wide range of decisions that have been or may be taken

by consumers in relation to products. This is wide in

chronological scope, covering decisions taken before,

during and after a contract is formed, for example:

 • whethertobuyaproduct

 • whethertopayadebt

  • whethertoexerciseacancellationright,arightto

a refund or replacement, or a right in relation to an

after-sales service

UNDUE INFLUENCE

14.25 The CPRs deﬁne undue influence as ‘exploiting a position

of power in relation to the consumer so as to apply pressure,

even without using or threatening to use physical force, in a

way which signiﬁcantly limits the consumer’s ability to make

an informed decision’.

14.26 When assessing whether a commercial practice is

aggressive, enforcers will consider whether a trader has

used harassment, coercion or undue influence.

14.27 Undue influence occurs when a trader exploits a position

of power, so as to act in such a way as to signiﬁcantly limit

a consumer’s ability to make informed choices. A trader may

be in a position of power because of the particular expertise

he has, or as a result of the particular circumstances of

consumers, for example the consumer is indebted to the

trader, or for some reason in fear of the trader. See the

chapter on aggressive practices for further information.

GLOSSARY | PART 4 | 67

47 See footnote 5 on page 14.

AVERAGE CONSUMERS

This Guidance uses ‘average consumer’ elsewhere

as a short-hand for each of the three types of

consumer described below.

14.28 Whether a commercial practice breaches the general

prohibition and the prohibitions relating to misleading and

aggressive practices will be judged by reference to the

‘average consumer’, the ‘average member’ of a targeted

group of consumers and the ‘average member’ of a

vulnerable group of consumers (as appropriate).

The concepts do not refer to actual consumers, and there

is no requirement to show evidence of actual consumers

being affected by an unfair commercial practice.

14.29 Where a practice is directed to a particular group of

consumers, the ‘average consumer’ refers to the average

member of that group. This type of average consumer

is referred to elsewhere in this Guidance as the average

targeted consumer.

14.30 Where a practice is likely to materially distort the economic

behaviour of only a certain vulnerable group, the ‘average

consumer’ refers to the average member of that group. See

below (paragraphs14.35 – 14.37) for further details on the

particular types of vulnerability that are covered by these

provisions.

14.31 This means that different practices, and even the same

practices in different circumstances, may be found to have

different effects depending on the type of consumer they

reach or affect. However, this concept is intended to help

the courts decide if a practice is prohibited due to the impact

or potential impact it has on the relevant consumers. The

provisions concerning vulnerable consumers are there to

ensure that traders do not unfairly exploit vulnerable people,

where their practices might not change non-vulnerable

consumers’ decisions.

68 | PART 4 | GLOSSARY

Average consumer (TYPE 1)

14.32 It is the notional average consumer whom the commercial

practice reaches or to whom it is addressed that is relevant.

The concept of the average consumer has been developed

in the case law of the European Court of Justice. The Court

has indicated that the average consumer should generally

be assumed to be reasonably well informed and reasonably

observant and circumspect, taking into account social,

cultural and linguistic factors. This is reﬂected in Regulation 2

of the CPRs. ‘Average’ does not mean a statistically average

consumer.

14.33 The average consumer may in some circumstances

be determined by reference to a smaller group than the

population as a whole, and accordingly have characteristics

that differ from those of an average consumer determined

by reference to the whole population. For example, the

average consumer of a Welsh language magazine could be

expected to read Welsh. The characteristics and the effect

of any unfair practices on this ﬁrst group could differ from

the average member of a targeted group which might be

Welsh language students, depending on the circulation and

content of the magazine, for example if the magazine was an

academic publication about Welsh linguistics.

AVERAGE MEMBER OF A TARGETED GROUP OF

CONSUMERS (TYPE 2)

14.34 The average targeted consumer will be relevant where

a commercial practice is directed to a particular group

of consumers. If a practice is targeted like this then it is

the average member of that group and that member’s

characteristics which are relevant. Indications of whether a

group is targeted might be found in the way advertising is

placed, the language of a commercial communication, the

nature of the product and the context. Examples are:

• television advertisements during children’s programmes

may be directed at children (and/or their parents)

• advertisements for a particular type of credit product

may be directed at ‘non-status’ or ‘sub-prime’ borrowers

 • the sale of a product related to a certain disability may

be directed at consumers who are vulnerable because

of that disability.

GLOSSARY | PART 4 | 69

48 This is shorthand for the text in Regulation 2(2) which

refers to where a practice is ‘directed to a particular group

of consumers’.

AVERAGE MEMBER OF A VULNERABLE GROUP OF

CONSUMERS (TYPE 3)

14.35 Where a ‘clearly identiﬁable group of consumers is

particularly vulnerable to the practice or to 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 ‘where the practice is likely

to materially distort the economic behaviour of only that

group’; then it is the average member of that group that is

the relevant average consumer. This does not apply if the

‘particular vulnerability of the group arises only from the

commercial practice being the common and legitimate

advertising practice of making exaggerated statements or

statements which are not meant to be taken literally.’

14.36 This offers protection to consumers who may be particularly

vulnerable either to a commercial practice or to the

underlying product and whose economic behaviour may, as a

result of the commercial practice in question, be distorted. A

commercial practice will be assessed from the perspective

of an average member of that group whose vulnerability the

trader could reasonably be expected to foresee. The test is

objective. It is not necessary that the trader actually foresees

the effect (or likely effect) on vulnerable consumers, only that

he could reasonably have been expected to do so.

14.37 Consumers are only (within the meaning of the CPRs) treated

as vulnerable, to a practice or to the underlying product, if they

are vulnerable because of inﬁrmity, age or credulity:

• inﬁrmity (mental or physical): this covers a range of

inﬁrmities including sensory impairment, limited mobility

and other disabilities. For example, consumers who

need to use wheelchairs might be a vulnerable group in

relation to advertising claims about ease of access to a

holiday destination or entertainment venue, or those with

a hearing impairment may be a particularly vulnerable

group in relation to advertising claims about ‘hearing aid

compatibility’ in a telephone advertisement.

• age: it may be appropriate to consider a practice from

the perspective of an older or younger consumer. For

example, the elderly might be particularly vulnerable to

certain practices connected with burglar alarm sales, or

children might be particularly vulnerable to advertisements

relating to toys shown on daytime television.

 • credulity: this covers groups of consumers who may

more readily believe speciﬁc claims. The term is neutral,

so the effect is to protect members of a group who are

for any reason open to be inﬂuenced by certain claims. An

instance might be members of a group who, because of

a particular misfortune, might believe certain claims more

readily than others.

70 | PART 4 | GLOSSARY

ANNEX A

ILLUSTRATIVE

EXAMPLES

A ILLUSTRATIVE EXAMPLES

A1 These examples are intended to show how the different

prohibitions contained in the CPRs might be applied in

practice. They illustrate that prohibitions can overlap and that

it may be possible to ﬁnd breaches of several different CPRs

prohibitions within the same set of facts. They also show

that the CPRs can be used to tackle key areas of detriment

previously handled by other legislation as well as practices

that were formerly difﬁcult to take action against.

A2 The examples below deliberately show breaches of multiple

prohibitions in order to illustrate different issues within each

example. Not all the unfair practices mentioned in each

example need to be present for there to be a breach of the

CPRs. The examples may also constitute a breach of the

general prohibition.

A3 The courts alone can decide if a practice is unfair, but these

are illustrations of practices that are likely to be considered

unfair.

Examples:

(1) A trader selling second hand cars displays for sale, on

his forecourt alongside other second hand cars for sale,

a second hand car which has been ‘clocked’ (that is, the

odometer has been tampered with to show a reduced

mileage). The odometer states that the car has travelled

25,000 miles. The car has actually travelled 95,000 miles.

• False information is given to consumers about a main

characteristic of the product – that is the mileage that the

car has travelled.

• The misleading statement could cause the average

consumer to take a different decision. For example to

decide to buy the car at the indicated price. The average

consumer may be unlikely to buy the car at that price, or

even at all, had he known its true mileage, given that the

value of a second hand car is generally determined, in

part, by its past usage.

• Where it can be shown that the false information would

cause or be likely to cause the average consumer to take

a different decision, there will be a breach of regulation 5.

• Where it can be shown that material information (in the

context) was not provided and that this would cause the

average consumer to take a different decision, there will

be a breach of regulation 6.

72 | PART 4 | ANNEX A ILLUSTRATIVE EXAMPLES

• The clocking of the car itself is likely to breach regulation

3, as tampering with the mileage cannot constitute

honest market practice, and would almost certainly

materially distort the average consumer’s economic

behaviour, causing him to take a different decision. The

‘clocker’ does not need to sell the car to breach the

Regulations in this way.

• A breach may arise even if the trader selling the vehicle

was not responsible for the car being clocked, as it may be

judged to be likely to lead to a breach.

• If the trader had placed a disclaimer on the car, a breach

could still occur if the disclaimer did not alter the impact of

the misleading statement or omission sufﬁciently to stop

the average consumer from taking a different decision.

Much will depend upon the actual circumstances, the

wording of the disclaimer and the context in which it is

applied. In any case the trader must not mislead the

consumer, either by false information or by the lack of

material information.

(2) A trader whose business is carrying out home

improvement work ‘cold calls’ potential customers and

attempts to sell his services to them on their doorstep.

During the course of his sales pitch, the trader refuses

to leave when consumers ask him to. He also uses

threatening language and behaviour in an attempt to

intimidate consumers into accepting his services or

agreeing his terms of service. In addition, the trader starts

work without the explicit permission of the consumers as

a means of pressurising them to accept, and pay for, his

services. The trader also tells consumers that their roofs

are in need of repair when this is not, in fact, the case.

• The trader’s practice of refusing to leave when requested

to do so is a breach of paragraph 25 of Schedule 1 to the

CPRs.

• The trader’s use of threatening language and behaviour

to intimidate consumers could be an aggressive practice

for the purpose of regulation 7. It is likely to be regarded as

harassment.

 • Where the trader starts work without the explicit

permission of the owner then this could also amount to

an aggressive practice and would be likely to be regarded

as coercion. Where work is started without consent,

consumers may be discouraged from shopping around,

or from deciding not to have the work done.

ANNEX A ILLUSTRATIVE EXAMPLES | PART 4 | 73

• In the second and third bullet points above it is also

necessary to consider the likely effect on consumers.

Broadly the practices would have to be likely to

signiﬁcantly impair consumers’ freedom of choice so

as to cause the average consumer to take a different

decision.

• Where the trader tells consumers that repairs are

needed when this is not in fact the case, this practice may

be a misleading action for the purpose of regulation 5.

False statements about the need for a repair may cause

the average consumer to take a different decision (that

is to agree to decide to have the work carried out, and/or

to engage that trader to carry out the work, and/or to pay

that price, and/or to agree to have the work done by that

trader straightaway).

(3) A trader employs various practices to recover debts

owed by consumers. He sends letters to consumers

containing demands that state: ‘pay now or we’ll take

criminal proceedings against you in court’, when such action

cannot legally be taken. Some of the demands that he

sends to consumers are made to look as if they are court

papers, although they do not have such status. The trader

offers consumers an opportunity to ‘reduce’ their debts,

and delay the requirement to repay, by signing up to a debt

consolidation loan product with a ‘very advantageous’

interest rate. He tells consumers who say that they cannot

pay their debts that they have no choice but to sign up to the

product offered by him, and states that it has the lowest

interest rate on the market for such a product. In fact,

the interest rate on the offered product is unusually high.

• The letters sent to consumers by the trader could be

misleading actions for the purpose of regulation 5,

as they contain false and/or deceptive information,

or deceive through their manner of presentation.

• These misleading actions could cause the average

consumer to take a different decision (for example, to pay

the debt sooner than he might otherwise have done, or to

hastily than he might otherwise have done or without ﬁrst

shopping around for alternative and more advantageous

means of consolidating his debt).

• Several elements of the trader’s practices could be

aggressive practices (that is by threatening court action).

All of these practices may cause the average consumer to

be frightened or to feel unduly pressurised. This is likely to

signiﬁcantly impair consumers’ freedom of choice so as to

cause the average consumer to make a different decision.

74 | PART 4 | ANNEX A ILLUSTRATIVE EXAMPLES

• The manner in which the trader offers a debt

consolidation loan product could be a misleading action

for the purpose of regulation 5 through the trader’s

provision of misleading information about the interest

rate. It could also be an aggressive practice for the

purpose of regulation 7, as the trader’s use of his position

of power to pressure consumers to sign up to the loan

product is likely to constitute undue inﬂuence and/

or coercion such as to signiﬁcantly impair consumers’

choice. Both factors are likely to cause the average

consumer to make a different decision.

(4) A trader selling household products to consumers

includes a prize draw advertisement with his mail-

order catalogue of goods. The advertisement creates the

impression that the recipient has won a major prize when

he has not. In fact, the vast majority of the recipients of the

mailing will only receive a low value give-away item which is

being distributed by the trader as a prize.

• The trader’s practice could breach paragraphs 19 and 31

of Schedule 1 to the CPRs. Paragraph 19 will be breached

if the trader claims, in his promotion, to offer a particular

prize described in it, but in fact the trader has not

awarded, and does not have in place any means by which

that prize (or a reasonable equivalent) could be awarded.

Paragraph 31 will be breached if a trader gives a false

impression that a consumer has won a prize (or that he

will win it, or will win it if he takes some particular action)

when in fact there is no prize, or the consumer must pay

money or incur a cost in order to claim the prize.

• The advertisement gives the impression that the

recipient has won a major prize when this is not the case.

This misleading impression is likely to be created by a

mixture of false or deceptive representations made in the

advertisement, and the omission from the advertisement

of certain information. For example, the value of the prize,

the terms and conditions attached to the competition or to

individual prizes, and the numbers of each available prize

that will be awarded, may all be misrepresented and/or

omitted from the advertisement. Accordingly there is likely

to be a misleading action (regulation 5). The advertisement

may also hide information by placing it within sections of

extremely small print which it is difﬁcult for consumers to

read. This may have relevance both to misleading actions

and misleading omissions (regulations 5 and 6).

• The misleading actions would be likely to cause

the average consumer to take a different decision, for

example by placing an order that he would have done

were it not for the prize on offer.

ANNEX A ILLUSTRATIVE EXAMPLES | PART 4 | 75

(5) A trader’s business is the sale, or secondary

re-sale, of tickets admitting entry to entertainment

and other similar events. He sells tickets for ‘restricted

view’ seats without telling consumers that the seats in

question are subject to a restricted view.

• The trader’s failure to provide consumers with the

information that the tickets he is selling are for seats

with a restricted view is a misleading omission for the

purpose of regulation 6. The information that the seats are

subject to a restricted view is material information that the

average consumer would need in order

to take an informed transactional decision (that is,

to decide whether or not to buy the tickets at the offered

price).

 • This misleading omission may cause the average

consumer to take a different decision. The average

consumer may be unlikely to buy the tickets at the price

sought had they known that they would have only a

restricted view of the event in question.

76 | PART 4 | ANNEX A ILLUSTRATIVE EXAMPLES

ANNEX B

EFFECT ON

UK LAW

B EFFECT ON UK LAW

B.1 Due to the implementation of the UCPD into UK law, the

Government has decided that certain pieces of legislation

be repealed in whole or part or cease to have effect. Please

refer to Schedules 2-4 to the CPRs for more information on

these measures which are affected or for which there are

transitional and saving provisions

B.2 The following is an illustrative list of key changes:

 • AdministrationofJusticeAct1970,section40is

amended

 • BusinessAdvertisements(Disclosure)Order1977

ceases to have effect

 • ConsumerProtectionAct1987,PartIIIisrepealed

 • ConsumerProtection(CodeofPracticeforTraderson

Price Indications) Approval Order 2005 ceases to have

effect

 • certainprovisionsoftheConsumerCreditAct

1974 and the Consumer Credit (Advertisements)

Regulations 2004 are repealed or amended

 • ConsumerTransactions(RestrictionsonStatements)

Order 1976 ceases to have effect

 • FraudulentMediumsAct1951isrepealed

 • relevantprovisionsofsixlocalActs(Countyof

Cleveland Act 1987, London Local Authorities Act

1996, Kent County Council Act 2001, Medway Council

Act 2001, North Yorkshire County Council Act 1991,

Nottingham City Council Act 2003) are repealed

 • MockAuctionsAct1961isrepealed

 • PriceIndications(MethodofPayment)Regulations

1991 cease to have effect

 • PriceIndications(ResaleofTickets)Regulations1994

cease to have effect

 • PriceMarking(FoodandDrinkServices)Order2003is

revoked

 • Tourism(SleepingAccommodationPriceDisplay)

Order 1977 is revoked

 • themajorityofprovisionsoftheTradeDescriptions

Act 1968 are repealed

 • TradeDescriptionsAct(SealskinGoods)(Information)

Order 1980 ceases to have effect

 • TradingRepresentations(DisabledPersons)Act1958

is repealed

78 | PART 4 | ANNEX B EFFECT ON UK LAW

49 Derived from the BERR Government Response to the

Consultation the Unfair Commercial practices Directive,

December 2006, www.berr.gov.uk/ﬁles/ﬁle35750.pdf

  • WeightsandMeasuresAct1985,section29is

repealed

B.3 In order to ensure that business-to-business protections

are adequately provided in the new fair trading framework,

the Control of Misleading Advertisements Regulations 1988

(CMARs) – will be revoked and replaced by the Business

Protection from Misleading Marketing Regulations 2008

(BPRs).

B.4 Apart from Control of Misleading Advertisements

Regulations 1988 (as amended)

, European derived

legislation such as the The Electronic Commerce (EC

Directive) Regulations 2002

and the Unfair Terms in

Consumer Contracts Regulations 1999

is not affected

by the implementation of the CPRs and remains in force.

The CPRs exist alongside other European legislation and

apply particularly to prohibit traders from engaging in

unfair practices generally. Businesses will therefore, need

to comply with the CPRs as well as other more sector

speciﬁc EU law.

ANNEX B EFFECT ON UK LAW | PART 4 | 79

50 Statutory Instrument 1988/915 (as amended).

51 Statutory Instrument 2002/2013.

52 Statutory Instrument 1999/2083. Note this is not an

exhaustive list. See the OFT’s guidance on Part 8 of the

Enterprise Act for more details on Community law on

Consumer protection.

80 | PART 4 | ANNEX B EFFECT ON UK LAW

ANNEX C

LIST OF

CONTACTS

OFFICE OF FAIR TRADING

Fleetbank House

2-6 Salisbury Square

London, EC4Y 8JX.

020 7211 8000

enquiries@oft.gov.uk

DEPARTMENT FOR BUSINESS, ENTERPRISE AND

REGULATORY REFORM

1VictoriaStreet

London SW1H 0ET

0207 215 5000

enquiries@berr.gsi.gov.uk

EUROPEAN COMMISSION

DG Health and Consumer Protection

B-1049 BRUSSELS

00 800 678 91011

ADVERTISING STANDARDS AUTHORITY

Mid City Place

71 High Holborn

LondonWC1V6QT

020 7492 2222

[email protected]

82 | PART 4 | ANNEX C LIST OF CONTACTS

PHONEPAYPLUS

Clove Building

4 Maguire Street

London

SE1 2NQ

020 7940 7474

[email protected]

LOCAL AUTHORITY CO-ORDINATORS OF REGULATORY

SERVICES

LACORS

Local Government House

Smith Square

London SW1P 3HZ

020 7665 3888

[email protected]v.uk

TRADING STANDARDS INSTITUTE

1 Sylvan Court

Sylvan Way

Southﬁelds Business Park

Basildon SS15 6TH

(Head Ofﬁce and Registered Ofﬁce)

0870 872 9000

instit[email protected]

ANNEX C LIST OF CONTACTS | PART 4 | 83

Call 0800 389 3158 for more free

copies of this publication.

Published by the Ofﬁce of Fair Trading

Printed in the UK on at least 50% recycled paper

Product code OFT1008

Edition 08/08