A new era for consumers as unfair trading is outlawed - August 08

With recently implemented legislation criminalising unfair, misleading and aggressive selling practices, many marketers could find themselves on the wrong side of the law if they do not comply, according to Christina Maclean, Solicitor at leading south-west law firm Rickerbys.

There’s a new dawn in consumer protection. It is now a criminal offence to use unfair, misleading and aggressive selling practices. Those who breach the new law risk hefty fines or imprisonment. The worst excesses of the past – think rogue traders, dodgy doorstep salesmen, pyramid selling and holiday clubs  - to name but a few  - are specifically targeted.

“This is good news for consumers, particularly the elderly, the vulnerable and the unwary,” comments Christina, “but it begs the question, where does it leave businesses and will they have to change the way they trade?

“The new legislation will undoubtedly have implications for PR firms, marketing consultants and advertising agencies and could sound the death knell for the quirky, the subtle and the sophisticated when it comes to advertising and marketing.”

The Consumer Protection from Unfair Trading Regulations 2008 (“the Regulations”) came into force on 26 May 2008. The new Regulations impose a blanket ban on unfair commercial practices. They introduce:

• a general prohibition against unfair commercial practices;
• specific prohibitions against misleading and aggressive practices; and
• contain a  blacklist of 31 prohibited practices.

They will be enforced primarily by local trading standards services and the Office of Fair Trading. Failure to comply could lead to a criminal prosecution. (Sanctions include fines or imprisonment).

Practical Steps
According to Christina, “This new legislation provides much needed protection for the vulnerable and the unwary but could provide a major headache for businesses, particularly in deciding how far they can go with regard to advertising, marketing and what sales techniques they can employ.

“To avoid severe penalties by breaking the law, as a minimum, businesses should carry out a thorough review of their sales techniques, marketing and advertising to check whether anything they are doing is on the blacklist and consider whether any practices being employed would fail to meet the standards of an average consumer.  If in doubt they should seek legal advice.

“In the current economic climate businesses need to be innovative and creative to survive. Whether or not the courts will carve out a middle way where businesses can still market their wares without being completely hamstrung remains to be seen,” concludes Christina.

For more information, contact Christina Maclean on 01242 224422 or email Christina.maclean@rickerbys.com