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19 2007

Consumer Protection Act 2007

Chapter 4

Prohibited Commercial Practices

Prohibited commercial practices.

55 .— (1) A trader shall not engage in any of the following commercial practices:

(a) a representation that the trader has an approval, authorisation or endorsement that the trader does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement;

(b) a representation that the trader is signatory to a code of practice, if the trader is not;

(c) a representation that the trader is about to cease trading or move premises, if the trader is not;

(d) a representation that a product has an approval, authorisation or endorsement that it does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement;

(e) a representation that a product is able to facilitate winning in games of chance;

(f) a representation that supply of a product is legal, if it is not, or creating such an impression;

(g) a representation that a product is able to cure an illness, dysfunction or malformation, if it cannot;

(h) a representation that describes a product as “gratis”, “free”, “without charge” or anything similar, if a consumer has to pay anything other than the necessary and reasonable cost of—

(i) responding to the representation, and

(ii) collecting the product or having it delivered;

(i) a representation that a commercial practice of the trader has an approval, authorisation or endorsement that it does not have, or making such a representation when the trader is not in compliance with the approval, authorisation or endorsement;

(j) a representation that a code of practice has an approval or other endorsement that it does not have;

(k) displaying a quality, standard or trust mark or symbol, or some equivalent type of mark or symbol, without having obtained necessary authorisation to do so;

(l) making an invitation to purchase a product without disclosing the existence of any reasonable grounds the trader may have for believing that the trader will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising);

(m) making an invitation to purchase a product, then—

(i) demonstrating a defective sample of the product, or

(ii) refusing to—

(I) show or display the product to the consumer,

(II) take an order from the consumer for the product, or

(III) deliver the product to the consumer within a reasonable period of time,

with the intention of promoting a different product (bait and switch);

(n) making a false representation that a product is available only for a limited time, or on particular terms for a limited time, in order to elicit an immediate decision from a consumer, depriving the consumer of sufficient opportunity or time to make an informed choice in relation to the trader’s product;

(o) subject to subsection (2), providing after-supply service to a consumer in a language that is not an official language of the relevant State in which the trader is located, nor is it the language in which the trader and consumer communicated prior to the agreement to supply;

(p) making a representation or creating an impression that a right given to consumers under an enactment is a distinctive feature of the trader’s promotion or supply;

(q) using editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion, whether in the content itself or in any oral, written, visual or descriptive representation in the promotion;

(r) making a representation to a consumer that is materially inaccurate in respect of the nature and extent of risk to the consumer’s personal security, or that of other members of the consumer’s household, if the consumer does not purchase the trader’s product;

(s) promoting a product (similar to that of another manufacturer) in such a manner as to deliberately mislead or deceive a consumer into thinking that the product is manufactured by that manufacturer, when it is not;

(t) making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product at conditions less favourable than normal market conditions;

(u) operating, running or promoting a competition or prize promotion without awarding the prizes described or reasonable equivalents;

(v) making a representation or creating an impression that a consumer has won or will win a prize or other equivalent benefit, if—

(i) there is no prize or equivalent benefit, or

(ii) in claiming the prize, the consumer has to make a payment or incur a loss;

(w) including in marketing material an invoice or any similar document seeking payment from a consumer for a product that the consumer has not ordered;

(x) making a representation or creating an impression that the trader—

(i) is not acting for purposes related to the trader’s trade, business or profession, when the trader is so acting, or

(ii) is acting as a consumer, when the trader is not;

(y) making a representation or creating an impression that after-supply service in relation to a product is available in a relevant State other than the one in which the product is supplied, when it is not so available.

(2) Subsection (1)(o) does not apply in either of the following cases:

(a) prior to the agreement to supply, the trader clearly discloses to the consumer the language or languages in which the after-supply service is available;

(b) the primary language in which the trader and consumer communicated prior to the agreement to supply is the official language of the relevant State in which the trader is located but is not the official language of the relevant State of the consumer.

(3) A trader shall not engage in any of the following commercial practices:

(a) making a representation or creating an impression that a consumer cannot leave the premises until a contract is formed;

(b) failing to comply with a consumer’s request to leave the consumer’s residence or to not return (except in circumstances and to the extent justified or permitted by or under law in order to enforce a contractual obligation);

(c) persistently failing to comply with a consumer’s request to cease—

(i) communicating or initiating unwanted or unsolicited contact with, or

(ii) making or sending unwanted or unsolicited representations to,

the consumer by telephone, fax, email or any other electronic means or remote media (except in circumstances and to the extent justified or permitted by or under law in order to enforce a contractual obligation);

(d) in relation to a consumer’s claim on an insurance policy, doing either or both of the following:

(i) requiring the consumer to produce documents irrelevant to the validity of the claim;

(ii) persistently failing to respond to the consumer’s correspondence on the matter, in order to dissuade the consumer from exercising contractual rights in respect of that claim;

(e) including in an advertisement a direct exhortation to children to—

(i) purchase a product, or

(ii) persuade a parent or adult to purchase the product for them;

(f) in relation to any product that a consumer does not solicit, demanding that the consumer—

(i) make immediate or deferred payment for the product, or

(ii) return or keep the product safe;

(g) explicitly informing a consumer that if the consumer does not purchase a product, the trader’s job or livelihood will be in jeopardy.

(4) Subsection (3)(f) does not apply in respect of a product provided by a trader in accordance with Regulation 9(3) of the European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001 (S.I. No. 207 of 2001).

Offence: prohibited commercial practices.

56 .— A trader who contravenes section 55 (1) or (3) 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 .

Price display regulations.

57 .— (1) If the Minister considers it to be in the interest of consumers, the Minister may make regulations requiring traders who supply a product, or a class or type of product, to display the price or charge to consumers of or for those products in any manner or form specified in the regulations.

(2) Without limiting subsection (1), a regulation under this section may—

(a) require prices or charges, or any combination of prices and charges, to be displayed in a single amount and inclusive of any charges, fees or taxes payable,

(b) require the price or charge display, or combined price and charge display, to state the range of prices or charges for the products, and

(c) prohibit the supply of the products to consumers at any price greater than the price or charge so displayed.

(3) The Minister may make different regulations under this section for different classes or types of products or traders.

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

(5) This section is in addition to section 49 (respecting certain surcharges being stated as part of price).

Offence: price display contraventions.

58 .— A trader who contravenes a regulation under section 57 commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5 .

Offence: weighing facilities in grocery retail.

59 .— (1) In this section, “grocery retailer” means a trader who is a retailer within the meaning of section 15A of the Competition Act 2002 .

(2) A grocery retailer who offers food for sale to consumers by weight (other than food packed for sale by its manufacturer or producer or by the person who supplied it for sale) shall—

(a) provide a weighing scale, or weighing machine, that—

(i) is in a public and prominent position on the premises where that food is sold, and

(ii) subject to health and food safety considerations, is as near as reasonably possible to where that food is on display for sale,

and

(b) allow any person purchasing, or about to purchase, such food to weigh it or observe its weighing on the weighing scale or weighing machine in a manner that allows the person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment.

(3) A grocery retailer who contravenes subsection (2)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5 .

Offence: preventing the reading of prices.

60 .— (1) A trader shall not, without reasonable cause, prevent a person from, or obstruct or interfere with that person in—

(a) reading the prices displayed on or in relation to products supplied by the trader, or

(b) entering premises for purposes described in paragraph (a), if those premises are where the trader supplies those products.

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

State of emergency affecting supply of a product.

61 .— (1) If the Government are of the opinion that abnormal circumstances prevail or are likely to prevail in relation to the supply of a product, the Government may by order (“emergency order”) declare that a state of emergency affecting the supply of that product exists.

(2) An emergency order may relate to one or more products and may define the products in such manner as the Government think fit.

(3) Unless the term of an emergency order is extended under subsection (4) or (5) or the order is revoked, an emergency order—

(a) remains in force for such term (not exceeding 6 months from the date that the order is made) that the Government think proper and specify in the order, and

(b) expires at the end of the last day of the term specified.

(4) Subject to subsection (5), if an emergency order is in force (“principal order”) and the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of a product to which the order relates, the Government may make one order (“extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the extension order is made.

(5) If during the extended term under subsection (4), the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of the product to which the extension order relates, the Government may make only one more order (“final extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the final extension order is made.

Power to fix maximum prices during state of emergency.

62 .— (1) If an emergency order is in force in respect of a product under section 61 , the Government may by order fix the maximum price at which that product may be supplied by a trader to consumers.

(2) An order under subsection (1) may—

(a) limit the application of the order to a class or type of the product,

(b) specify conditions by reference to which a maximum price is fixed and may fix different maximum prices in relation to different conditions,

(c) apply to the whole State, to a particular geographical area in the State, or to the supply of the product by a particular class or type of trader,

(d) fix a maximum price by specifying it or by specifying the manner in which it is to be calculated, and

(e) provide for any incidental or ancillary matter (including a requirement that the product to which the order relates shall be sold only in specified units of weight, measure or volume) that the Government consider necessary or expedient to give full effect to any provision of the order or to secure compliance with it.

(3) Unless previously revoked, an order made under this section expires on the expiration of the emergency order in respect of which it is made.

Offence: contravening maximum price orders.

63 .— A trader who contravenes an order made under section 62 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 .