A guide to the Consumer Protection from Unfair Trading Regulations 2008

Introduction

The Consumer Protection from Unfair Trading Regulations 2008 (“the Regulations”) are a complicated piece of legislation that can often appear to be daunting to trader who may find themselves accused of breach. In a series of blog articles, of which this is the first, I will explain in relatively simple terms what the Regulations are and how they operate.

What are the Consumer Protection from Unfair Trading Regulations 2008?

The legislation is, at its heart. a set of Regulations designed to prevent certain damaging commercial practices. The legislation is focussed mainly on the interactions between consumer and a trader but also cover circumstances where a trader makes a purchase from a consumer and where transactions or practices between businesses could affect consumers. The regulations relate primarily to:

- advertising,
- marketing,
- entry into a contract or agreement,
- performance of a contract and
- enforcement of a contract.

Within Schedule 1 to the Regulations there are thirty-one practices that always unfair and are automatically prohibited. These are known as blacklisted unfair practices.

The other main prohibited practices within the Regulations relate to 'misleading actions' under regulation 5, 'misleading omissions' under regulation 6, 'aggressive practices' under regulation 7 and 'practices that contravene professional diligence', otherwise known as the ‘General Prohibition’ under regulation 3(3).

Who prosecutes offences under the Consumer Protection from Unfair Trading Regulations 2008?

Prosecutions under the Regulations are investigated by the Trading Standards teams within each local authority (the Council). Wide-ranging conduct can sometimes be the subject of joint investigations by different Trading Standards teams where the practice is a national one, and can be investigated by both the Trading Standards and the Police should the activity be also fraudulent. The matter will be prosecuted by the legal department within the local authority who leads the investigation or the Crown Prosecution Service if the Police are the lead agency.  

What is a Commercial Practice?

Under Regulation 2(1) a commercial practice is 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”

This basically means the practice of engaging in commercial practices with consumers. A couple of factors worth noting is that although the legislation refers to ‘consumers’ an offence can take place in respect of just a single complainant consumer. Also, the reference to a ‘transaction’ does not mean that a transaction must have taken place, an offence can be committed without a transaction having occurred. Lastly, although a commercial practice suggests that there may be a continuing course of conduct, in fact a single transaction or incident can give rise to liability under the Regulations.

What is the scope of the Consumer Protection from Unfair Trading Regulations 2008?

As can be seen above the scope of the Regulations is very broad. The determination of if something is a commercial practice within the scope of the Regulations can be complex but generally it can be said that the Regulations are concerned with whether a commercial practice:

- is a misleading action;
- relates to a misleading omission;
- is an aggressive practice; or
- acts contrary to the requirements of professional diligence in a way which is likely to damage the consumer’s ability to make an informed decision.

As stated above, if the commercial practice is one of the Blacklisted unfair practices, then it automatically falls under the scope of the Regulations.

Who is a consumer under the Consumer Protection from Unfair Trading Regulations 2008?

Under regulation 2(1) a consumer is defined as:

“an individual acting for purposes that are wholly or mainly outside that individual’s business”

So it relates to personal, not business transactions. The Regulations are not concerned with business to business activities, but where a trader is involved in ‘mixed’ sales- selling to both businesses and consumers then the Regulations will apply. Often lawyers are asked to look carefully as to whether transactions are business trades disguised as personal trades or the other way around. These issues often arise during cases involving used cars and wristwatches. 

If you study the legislation you will see that the Regulations often refer to the ‘average consumer’ – this means that there is an objective test in the legislation. It is not concerned with the effect of the practice on a specific consumer but on the theoretical ‘average consumer’. Under Regulation 2(2)-(6) this average consumer is reasonably well informed, reasonably observant and circumspect. Where a commercial practice is directed towards a group of consumers, an average consumer will be an average member of that group and where a group of consumers is particularly vulnerable to a commercial practice or that which is being sold then an average consumer will be an average member of that group.

It is important to note that appellate authorities have outlined that the Regulations are in place to protect consumers who take reasonable care of themselves, rather than the ignorant, careless or hasty consumer. This can be important when defending cases under the Regulations as complaints are often made by individuals who have themselves made mistakes or those 'buyer's remorse'; these are of course very different to legitimate complaints.  

Who is a trader under the Consumer Protection from Unfair Trading Regulations 2008?

A trader is defined under Regulation 2(1) as a person acting for purposes relating to that person’s business, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf. A “business” includes a trade, craft or profession, and the activities of any government department or local or public authority and can include an online platform which can be considered a trader under the Regulations

Therefore a trader does not have to be as formal as a 'business' such as a limited company or a Public Listed Company. Sole traders, craftsmen and others selling for business profit are caught within the terms of the Regulations. 

What are blacklisted unfair practices under the Consumer Protection from Unfair Trading Regulations 2008?

Blacklisted unfair practices are listed in Schedule 1 to the Regulations and consist of:

- Code of conduct signatory claims (paragraph 1)
- Displaying a trust mark without authorisation (paragraph 2)
- False claims that a code of conduct is endorsed (paragraph 3)
- False claims that a trader or its product has been endorsed (paragraph 4)
- Bait advertising (paragraph 5)
- Bait and switch advertising (paragraph 6)
- False representations about availability of a product (paragraph 7)
- False undertakings re languages for after-sales support (paragraph 8)
- False representations that a product can be legally sold (paragraph 9)
- False representations about the consumer’s legal rights (paragraph 10)
- Undisclosed advertorials (paragraph 11)
- False claims about risks to consumers personal security (paragraph 12)
- Copycat packaging and other confusing promotions (paragraph 13)
- Pyramid schemes (paragraph 14)
- False “closing down” sales (paragraph 15)
- Aids to winning games of chance (paragraph 16)
- False cure claims (paragraph 17)
- Misinformation about market conditions (paragraph 18)
- Failing to award prizes in a promotion (paragraph 19)
- False claims that products are “free” (paragraph 20)
- Falsely giving the impression the consumer has already ordered (paragraph 21)
- Traders misrepresenting themselves as consumers (paragraph 22)
- Misrepresenting the availability of after-sales support (paragraph 23)
- Preventing consumers from leaving the premises (paragraph 24)
- Ignoring requests to leave the consumers home (paragraph 25)
- Persistent and unwanted phone-calls, faxes and emails (paragraph 26)
- Requiring irrelevant documents or not responding to correspondence (paragraph 27)
- Exhorting children to buy products or encouraging children to pester parents to buy products (paragraph 28)
- Passive or inertia selling (paragraph 29)
- Trader hardship stories (paragraph 30)
- Falsely representing the consumer has won (paragraph 31)

Each of these can be factually and legally complicated and are outside of the scope of this general article, if you find yourself accused of, or are concerned about whether you are conducting a blacklisted unfair practice under the Consumer Protection from Unfair Trading Regulations 2008 it is advisable to seek specialist legal assistance.

Conclusion

It is virtually impossible to outline all the details relating to the Regulations in an easily digestible article but the above gives a general flavour of the law. I will go on to look at Aggressive practices and misleading actions and omissions in other articles and go into some detail about the more commonly charged offences.

I defend a lot of Trading Standards prosecutions where cases are brought by local authorities under the Consumer Protection from Unfair Trading Regulations 2008. The legislation is a favourite allegation for local authorities who appear to often overload charges. Sometimes such charges are brought in tandem with and as alternatives to charges under the Fraud Act 2006, seemingly this is often done to put pressure on a defendant. Whatever the position, this is a legally complicated area of law in which there are many loopholes and ambiguities.

If you find yourself accused of a breach of the Consumer Protection from Unfair Trading Regulations 2008 you may wish to avail yourself of highly competent and experienced representation. Quentin Hunt is a Criminal Defence Barrister who accepts instructions both through solicitors and directly from members of the public. He specialises in Trading Standards law and has been defending clients from Local Council actions for over 22 years. He believes in a proactive and detail driven approach to cases to ensure the best chances of success for his clients.

If you have a Trading Standards issue you may contact Quentin for a free, no obligation conversation about your case.