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19 2007

Consumer Protection Act 2007

Chapter 2

Misleading Commercial Practices

General prohibition on misleading commercial practices.

42 .— (1) A trader shall not engage in a misleading commercial practice.

(2) Without prejudice to the amendments of the Hallmarking Act 1981 made by section 99 , sections 43 to 46 specify the various circumstances in which a commercial practice is misleading.

Misleading: false, misleading or deceptive information.

43 .— (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) A commercial practice is misleading if it would be likely to cause the average consumer to be deceived or misled in relation to any matter set out in subsection (3) and to make a transactional decision that the average consumer would not otherwise make.

(3) The following matters are set out for the purposes of subsections (1) and (2):

(a) the existence or nature of a product;

(b) the main characteristics of a product, including, without limitation, any of the following:

(i) its geographical origin or commercial origin;

(ii) its availability, including, without limitation, its availability at a particular time or place or at a particular price;

(iii) its quantity, weight or volume;

(iv) its benefits or fitness for purpose;

(v) the results to be expected from it;

(vi) the risks it presents to consumers;

(vii) its usage or prior history;

(viii) its composition, ingredients, components or accessories;

(ix) the specifications of the product, including, without limitation, the grade, standard, style, status or model of the product;

(x) the after-supply customer assistance available to consumers in relation to the product;

(xi) the handling of consumer complaints in relation to the product;

(xii) the method or date of—

(I) the product’s delivery, supply or provision, or

(II) in the case of goods, the product’s manufacture;

(xiii) the results and material features of tests or checks carried out on the product;

(xiv) in relation to a service, its execution or performance;

(c) the price of the product, the manner in which that price is calculated or the existence or nature of a specific price advantage;

(d) the need for any part, replacement, servicing or repair in relation to the product;

(e) the existence, extent or nature of any approval or sponsorship (direct or indirect) of the product by others;

(f) the nature, attributes or rights of the trader, including, without limitation, the following:

(i) the trader’s identity, qualifications, assets or status;

(ii) the trader’s affiliation or connection with others;

(iii) the existence, extent or nature of—

(I) any industrial, commercial or intellectual property rights the trader may have, or

(II) any award, distinction, approval or sponsorship (direct or indirect) the trader has or has received;

(g) the extent of the trader’s commitments;

(h) the trader’s motives for the commercial practice;

(i) the nature of the trader’s supply process;

(j) the legal rights of a consumer (whether contractual or otherwise) or matters respecting when, how or in what circumstances those rights may be exercised.

(4) If the commercial practice in subsection (2) involves the provision of information, it is not a defence in any proceeding to show that the information is factually correct.

(5) In determining whether a commercial practice under subsection (1) or (2) is misleading, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

(6) Without limiting subsection (5)

(a) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product was previously offered at a different price or at a particular price, consideration shall be given to whether the product was previously offered openly and in good faith at that price and at the same place for a reasonable period of time before the representation was made, and

(b) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product is being offered by a trader at or below a price recommended by the manufacturer, producer or supplier of the product (other than the trader), consideration shall be given to whether that recommended price was one recommended in good faith by that manufacturer, producer or supplier.

(7) In determining the geographical origin of goods the manufacture or production of which involves more than one country, consideration shall be given to where the goods underwent their last substantial and economically justified processing or working (in a place equipped for that purpose), resulting in the manufacture of new goods or representing an important stage of the manufacture or production.

Misleading: competitor or product confusion in marketing or advertising.

44 .— (1) A commercial practice involving marketing or advertising is misleading if it would be likely to cause the average consumer—

(a) to confuse—

(i) a competitor’s product with the trader’s product, or

(ii) a competitor’s trade name, trade mark or some other distinguishing feature or mark with that of the trader,

and

(b) to make a transactional decision that the average consumer would not otherwise make.

(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

Misleading: non-compliance with commitment under code of practice by which trader is bound.

45 .— (1) A commercial practice is misleading if—

(a) it involves a representation that the trader abides, or is bound, by a code of practice,

(b) the representation referred to in paragraph (a) would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make, and

(c) the trader fails to comply with a firm commitment in that code of practice.

(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

(3) For the purposes of this section, a firm commitment in a code of practice is one that is not merely aspirational but is capable of being verified.

Misleading: withholding, omitting or concealing material information.

46 .— (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision (“material information”) and such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) A commercial practice is misleading if—

(a) the trader—

(i) provides material information referred to in subsection (1) in a manner that is unclear, unintelligible, ambiguous or untimely, or

(ii) fails to identify the commercial intent of the practice (if such intent is not already apparent from the context),

and

(b) such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(3) If a commercial practice is or includes an invitation to purchase, each of the following constitutes material information for the purposes of this section, unless already apparent to the consumer in the context of the commercial practice:

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(b) the geographical address of the trader, the identity of the trader (such as his or her trading name) and, if the trader is acting in a consumer transaction as an agent of another trader, the geographical address and the identity of that other trader;

(c) the price of the product (inclusive of taxes) or, if the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated;

(d) any freight, delivery or postal charges that apply in relation to the product or, if such charges cannot reasonably be calculated in advance, a statement of the fact that such charges will apply and be payable by the consumer;

(e) the handling of consumer complaints in relation to the product or the arrangement for payment, delivery or performance, if such handling or arrangement does not meet or accord with—

(i) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers, or

(ii) the general principle of good faith in the trader’s field of activity;

(f) if applicable, the legal rights of a consumer (whether contractual or otherwise) to withdraw from or cancel the consumer transaction.

(4) The material information set out in subsection (3) is in addition to and not instead of any other information that the trader is required by law to provide to a consumer, including, without limitation, any information required to be provided by regulations under this Act.

(5) In determining whether a commercial practice is misleading under this section, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances, including—

(a) the space or time available in any communications medium used, and

(b) any measures taken by the trader to make the material information available to consumers by other means.

Offence: misleading commercial practices.

47 .— A trader who engages in any misleading commercial practice described in section 43 (1) or (2) commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5 .

Prohibition on surcharges where one method of payment chosen in preference to another.

48 .— (1) In this section—

“cash” means cash that is legal tender;

“relevant method” , in relation to payment, means each of the following methods of payment—

(a) cash,

(b) credit card,

(c) direct debit,

(d) any other method or methods of payment prescribed by the Minister.

(2) In this section a reference to a representation includes a reference to a representation made at any stage up to the time the trader accepts payment in respect of the product concerned.

(3) Where—

(a) a trader makes a representation that the trader will accept payment in respect of a product by any one of 2 or more different relevant methods, or

(b) it is the practice of a trader to accept payment in respect of a product by different relevant methods,

the trader shall not impose an additional charge on any person by reason of the person’s making payment in respect of the product by one of the relevant methods (to which the foregoing representation relates or as regards which the foregoing practice exists) as distinct from another of them.

(4) For the purposes of subsection (3)

(a) without limiting any of the other means by which that subsection may be contravened, a trader shall be deemed to impose an additional charge, by reason of the person concerned making payment as mentioned in that subsection, if the price charged by the trader in respect of the product concerned is, where one of the relevant methods of payment is used by that person, greater than the price that would be so charged were that person to use another of them,

(b) if the representation or practice referred to in that subsection relates not only to relevant methods of payment but to one or more other methods of payment as well, that fact is immaterial, and

(c) it is immaterial that the trader can show that any expenses incurred by the trader in accepting payment by one of the relevant methods are greater than those incurred by the trader in accepting payment by another of them.

(5) A trader who contravenes subsection (3) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5 .

(6) In proceedings for an offence under this section, where evidence is given that on a particular occasion the defendant accepted payment in respect of the product concerned by a relevant method which was different from that which the defendant accepted in respect of the product on another occasion in the period of 12 months preceding the first-mentioned occasion (and that previous method is also a relevant method), then it shall be presumed, until the contrary is proved, that a practice existed on the part of the defendant to accept payment in respect of the product by those foregoing methods.

Requirement that surcharge (where otherwise permissible) be stated as part of price.

49 .— (1) Where it is the practice of a trader to accept payment in respect of a product—

(a) by only one relevant method and to impose a charge on a person for the person’s making payment in respect of the product by that method, or

(b) by different relevant methods and to impose on a person the same charge for the person’s making payment in respect of the product by any of those methods,

the trader shall ensure that any representation made by the trader, or on the trader’s behalf, in relation to the price payable in respect of the product, states clearly that price as a single amount inclusive of the foregoing charge.

(2) For the purposes of subsection (1), it is immaterial that the trader also accepts payment in respect of the product concerned by one or more methods of payment that are not relevant methods of payment and the reference in that subsection to the practice of a trader to accept payment in respect of a product by only one relevant method shall be read accordingly.

(3) A trader who contravenes subsection (1) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5 .

(4) In a case falling within paragraph (a) or (b) of subsection (1), nothing in that subsection prevents the inclusion in any representation referred to in that subsection of—

(a) an indication that the single price stated is inclusive of a charge for making payment by the method concerned or, as the case may be, any of the methods concerned, or

(b) an indication of the amount of such charge.

(5) In this section ‘relevant method’, in relation to payment, has the same meaning as it has in section 48 .

Consumer information regulations.

50 .— (1) Subject to subsection (5), if the Minister considers it to be in the interest of consumers to have a product, or a class or type of product, marked with or accompanied by any information (or both), the Minister may make regulations—

(a) prescribing the product or class or type of product,

(b) prescribing—

(i) any stamps, marks, tags and labels for use on those products and the manner of their use, or

(ii) any information to accompany those products when they are supplied to consumers by traders, or

(iii) the matters referred to in both of the foregoing subparagraphs,

(c) requiring traders who supply a prescribed product, or a product of a prescribed class or type, to—

(i) stamp, mark, tag or label them in accordance with regulations made under paragraph (b)(i), or

(ii) have prescribed information under paragraph (b)(ii) accompany those products in the manner and form specified in the regulations, or

(iii) do the things referred to in both of the foregoing subparagraphs,

and

(d) regulating or prohibiting the supply of a prescribed product, or a product of a prescribed class or type, if any regulation under paragraph (b) or (c) is not complied with.

(2) Subject to subsection (5), if the Minister considers it to be in the interest of consumers that advertisements for a product, or a class or type of product, contain or refer to any information relating to those products (or do both those things), the Minister may make regulations—

(a) prescribing the product, or class or type of product, and that information, and

(b) requiring traders who market or advertise those products to do either or both of the following, as the Minister considers necessary or appropriate:

(i) include that information in their advertisements and to do so in the manner and form specified in the regulations;

(ii) specify in their advertisements the means by which that information may be obtained by a consumer.

(3) The Minister may make different regulations under this section for—

(a) different classes or types of products or traders,

(b) different classes or types of advertisements,

(c) different circumstances, and

(d) different geographical areas of the State.

(4) A regulation made under this section may apply to the whole State or to a specified geographical area of the State.

(5) The Minister may not make a regulation under this section unless the Minister is satisfied that in the context—

(a) the average consumer would need the stamp, mark, tag, label or information in order to make an informed transactional decision (“material information”), and

(b) if such material information was withheld, omitted or concealed, it would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(6) Subsection (5) does not apply in respect of regulations that may be made under subsection (1) relating to indications of the standard of fineness of articles of precious metal.

Offences: contravening consumer information regulations.

51 .— (1) A trader who supplies a product in contravention of a regulation under section 50 (1) commits an offence.

(2) If an advertisement fails to comply with any requirement of a regulation under section 50 (2), any trader who publishes the advertisement or causes it to be published commits an offence.

(3) A trader who commits an offence under subsection (1) or (2) is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5 .