The Consumer Protection from Unfair Trading Regulations 2008 replaced many of the old consumer protection measures. The new legislation made it a criminal offence to use misleading or aggressive commercial practices. However, under the law consumers still had no right of redress against traders, and this has led to The Consumer Protection (Amendment) Regulations 2014 being introduced.
The regulations give consumers important new rights, although these rights only apply if the trader has committed a misleading or aggressive practice under the 2008 legislation.
Misleading practice can include traders making false claims, having misleading product descriptions, or being vague deliberately about the actual price of a good or service or hiding additional costs and charges from consumers.
For example: A window company states it is a member of the Glass & Glazing Federation when it is not.
Aggressive practices would be any behaviour by the trader that significantly impairs the average consumer’s freedom of choice. It covers the use of harassment, coercion or undue influence.
For example: Pressure selling by a salesperson who outstays their welcome in the customer’s home would be aggressive practice.
The Regulations list 31 banned practices, these include:
- Claiming to be a signatory to a code of conduct when the trader is not.
- Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
- 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.
- Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.
- Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return, except in circumstances and to the extent justified to enforce a contractual obligation.
- 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.
Making a claim for misleading or aggressive commercial practices
Only consumers that take a relevant ‘transactional decision’ (i.e. made a repayment or entered into a contract) following a trader’s misleading or aggressive practice can get private redress under the new regulations.
The consumer will need to show that they entered the contract or made a repayment because of the misleading or aggressive practice.
The link to consumer credit agreements
Generally the new regulations don’t apply to credit agreements, this is because consumer credit is already highly regulated. But there is one important exception that retailers need to be aware of:
The new regulations do apply where a consumer has been misled or pressured into entering a “restricted-use credit agreement”. This is a credit agreement where the borrower is not free to use the credit as they choose and the credit must be used to finance a particular transaction with the trader.
For example: A salesperson has bullied a consumer into buying a new door they don’t need, and the consumer signs a credit agreement to pay for it in instalments. The regulations would apply to both the purchase of the door and the credit agreement.
Consumers have no rights to make claims against those further up the supply chain, only against the trader they have entered the agreement with or made a repayment to.
If a consumer is misled or intimidated into entering a contract or making a repayment then there are potentially three types of remedies available:
|1. Unwind a contract and get their money back
|2. Discount on the price paid
|3. Damages for detriment caused
The article above is a brief summary of the Misleading & Aggressive Commercial Practices – New Private Rights for Consumers issued by the Department for Business Innovation & Skills in October 2014