Consumer Protection from Unfair Trading Regulations 2008 - Condensed.
This is a potted version of the CPUTR criminal provisions together with flow charts including a civil flow chart. It should NOT be seen as a substitute for referring to a full copy of the Regulations.
[Words in square brackets added or substituted by the Consumer Protection (Amendment) Regulations 2014.]
Key general interpretations in reg 2 include:
"average consumer"
"In determining the effect of a commercial practice on the average consumer, where the practice reaches or is addressed to a consumer or consumers, account shall be taken of the material characteristics of such average consumer including his being reasonably well informed, reasonably observant and circumspect."
(Note: The above part of the interpretation seeks to adopt the meaning given to the term "average consumer" by such European Court of Justice decisions as that in Case C-210/96 Gut Springenheide GmbH and Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung [1998] ECR I-04657.)
In addition
i) Where the practice is directed to a particular group of consumers, a reference to the average consumer shall be read as referring to the average member of that group.
ii) Where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, and the practice is likely to appreciably impair the ability of only consumers of that group to make an informed decision thereby causing them to take a transactional decision, a reference to the average consumer shall be read as referring to the average member of that group but without prejudice to the common and legitimate advertising practice of making exaggerated statements which are not meant to be taken literally.
"business" includes a trade, craft or profession [and the activities of any government department or local or public authority].
"commercial practice" means 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;
"consumer" means [an individual acting for purposes that are wholly or mainly outside that individual's business];
"enforcement authority" means the Office of Fair Trading and every local weights and measures authority.
["digital content" means data which are produced and supplied in digital form;]
"goods" [means any tangible moveable items, but that includes water, gas and electricity if and only if they are put up for sale in a limited volume or set quantity];
"invitation to purchase" means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase.
(Note: This is narrower than the meaning of offers to supply in the TDA which included "in his possession for supply" without any indication as to the price.)
"product" [means (a) goods, (b) a service, (c) digital content, (d) immoveable property, (e) rights or obligations, or (f) a product of the kind mentioned in regulation 2(1A) and 2(1B) …]
[reg 2(1A) provides: "A trader ('T') who demands payment from a consumer ('C') in full or partial settlement of C's liabilities or purported liabilities to T is to be treated … as offering to supply a product to C." ]
[reg 2(1B) provides: "In such a case the product that T offers to supply comprises the full or partial settlement of those liabilities or purported liabilities."]
"professional diligence" means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either:
(a) honest market practice in the trader's field of activity, or
(b) the general principle of good faith in the trader's field of activity.
"trader" [(a) means 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, and (b) except in Part 4A, includes a person acting in the name of or on behalf of a trader];
(Note: This addresses the decision of the House of Lords, in R v Warwickshire County Council ex parte Johnson [1993] AC 583, that the words "in the course of a business of his", in the former s 20 of the CPA, did not include an employee. Employees of traders acting in the course of their employment are therefore also traders. The owner of the business will continue to be vicariously liable for the acts of his employees. See Mear v Baker (1954) JP 118 and St Helens MBC v Hill (1992) 156 JP 602.
In relation to offences under reg 8, however, the directing mind of a company will only be liable for commercial practices knowingly or recklessly engaged in by its employees if it had delegated its functions of management to such employees. See Airtours plc v Shipley (1994) 158 JP 835).
"transactional decision" means any decision taken by a consumer whether to act or to refrain from acting concerning:
(a) whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or
(b) whether, how and on what terms to exercise a contractual right in relation to a product.
Offences
Reg 8 Breach of professional diligence
A trader is guilty of an offence if:
1) he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence;
and
2) the practice appreciably impairs or is likely to appreciably impair the average consumer's ability to make an informed decision with regard to the product thereby causing him to take a transactional decision.
"recklessly": "A trader who engages in a commercial practice without regard to whether the practice contravenes the requirements of professional diligence shall be deemed recklessly to engage in the practice, whether or not the trader has reason for believing that the practice might contravene those requirements."
(Note: the above wording reflects the meaning of "recklessly in s 14(2)(b) TDA and hence Widgery LCJ's comments in MFI Warehouses Ltd v Nattrass [1973] 1 All ER 762, are instructive: "Recklessly' in the context of the [TDA] does not involve dishonesty. Accordingly it is not necessary to prove that the statement was made with that degree of irresponsibility which is implied in the phrase 'careless whether it be true or false'. I think it suffices for present purposes if the prosecution can show that the advertiser did not have regard to the truth or falsity of his advertisement even though it cannot be shown that he was deliberately closing his eyes to the truth, or that he had any kind of dishonest mind.")
Reg 9 Misleading actions
A trader is guilty of an offence if he engages in a commercial practice which is a misleading action, that is:
1) (a) it contains false information and is therefore untruthful in relation to a matter listed in reg 5(4); or
(b) it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to a matter in reg 5(4), even if the information is factually correct; or
(c) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
and
2) it causes or is likely to cause the average consumer to take a transactional decision, in the case of (c) above, taking account of its factual context and all its features and circumstances.
The matters in reg 5(4) are:
(a) the existence or nature of the product;
(b) the main characteristics of the product, including;
(5)(a) availability of the product;
(5)(b) benefits of the product;
(5)(c) risks of the product;
(5)(d) execution of the product;
(5)(e) composition of the product;
(5)(f) accessories of the product;
(5)(g) after-sale customer assistance concerning the product;
(5)(h) the handling of complaints about the product;
(5)(i) the method and date of manufacture of the product;
(5)(j) the method and date of provision of the product;
(5)(k) delivery of the product;
(5)(l) fitness for purpose of the product;
(5)(m) "usage" of the product; [The BPMMR uses the word "uses"]
(5)(n) quantity of the product;
(5)(o) specification of the product;
(5)(p) geographical or commercial origin of the product;
(5)(q) results to be expected from use of the product; and
(5)(r) results and material features of tests or checks carried out on the product.
(c) the extent of the trader's commitments;
(d) the motives for the commercial practice;
(e) the nature of the sales process;
(f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;
(g) the price or the manner in which the price is calculated;
(h) the existence of a specific price advantage;
(i) the need for a service, part, replacement or repair;
(j) the nature, attributes and rights of the trader or his agent, including his;
(6)(a) identity;
(6)(b) assets;
(6)(c) qualifications;
(6)(d) status;
(6)(e) approval;
(6)(f) affiliations or connections;
(6)(g) ownership of industrial, commercial or intellectual property rights; and
(6)(h) awards and distinctions.
(k) the consumer's rights or the risks he may face, including;
rights the consumer may have under Part 5A of the Sale of Goods Act 1979 or Part 1B of the Supply of Goods and Services Act 1982.
Reg 10 Misleading omissions
A trader is guilty of an offence if he engages in a commercial practice which is a misleading omission, that is:
1) in its factual context, taking account of the matters in reg 6(2), it:
(a) omits material information,
(b) hides material information,
(c) provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) fails to identify its commercial intent, unless this is already apparent from the context;
and
2) it causes or is likely to cause the average consumer to take a transactional decision.
The matters in reg 6(2) are:
(a) the features and circumstances of the commercial practice;
(b) the limitations of the medium used to communicate the commercial practice (including limitations of space or time); and
(c) where the medium used to communicate the commercial practice imposes limitations of space or time, any measures taken by the trader to make the information available to consumers by other means.
"Material information" means:
(3)(a) the information which the average consumer needs, according to the context, to take an informed transactional decision; and
(3)(b) any information requirement which applies in relation to a commercial communication as a result of a Community obligation.
and, where a commercial practice is an invitation to purchase:
(4)(a) the main characteristics of the product, to the extent appropriate to the medium, by which the invitation to purchase is communicated, and the product; [commas added]
(4)(b) the identity of the trader, such as his trading name, and the identity of any other trader on whose behalf the trader is acting;
(4)(c) the geographical address of the trader and the geographical address of any other trader on whose behalf the trader is acting;
(4)(d) either—
(i) the price, including any taxes; or
(ii) where the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated;
(4)(e) where appropriate, either—
(i) all additional freight, delivery or postal charges; or
(ii) where such charges cannot reasonably be calculated in advance, the fact that such charges may be payable;
(4)(f) the following matters where they depart from the requirements of professional diligence—
(i) arrangements for payment,
(ii) arrangements for delivery,
(iii) arrangements for performance, and
(iv) complaint handling policy;
and
(4)(g) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.
Reg 11 Aggressive commercial practices
A trader is guilty of an offence if he engages in a commercial practice which is aggressive, that is, in its factual context, taking account of all of its features and circumstances:
1) it significantly impairs or is likely significantly to impair the average consumer's freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence;
and
2) it causes or is likely to cause him to take a transactional decision.
In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of:
(a) its timing, location, nature or persistence;
(b) the use of threatening or abusive language or behaviour;
(c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgment, of which he is aware, to influence the consumer's decision with regard to the product;
(d) any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and
(e) any threat to take any action which cannot legally be taken.
"coercion" includes the use of physical force; and
"undue influence" means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision.
Reg 12 Commercial practices in Schedule 1
A trader is guilty of an offence if he engages in a commercial practice set out in any paragraph of Schedule 1 other than paragraphs 11 and 28, that is:
The Schedule 1 commercial practices are:
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when the trader, the commercial practices or the product have not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply, or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then—
(a) refusing to show the advertised item to consumers,
(b) refusing to take orders for it or deliver it within a reasonable time, or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. 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.
8. Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the EEA State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).
12. Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
14. Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.
15. Claiming that the trader is about to cease trading or move premises when he is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as 'gratis', 'free', 'without charge' or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
23. Creating the false impression that after-sales service in relation to a product is available in an EEA State other than the one in which the product is sold.
24. Creating the impression that the consumer cannot leave the premises until a contract is formed.
25. 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.
26. 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.
27. Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
29. Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer, except where the product is a substitute supplied in accordance with regulation 19(7) of the Consumer Protection (Distance Selling) Regulations 2000 (inertia selling).
30. Explicitly informing a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
(a) there is no prize or other equivalent benefit, or
(b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.
Reg 13 Penalty for offences
A person guilty of an offence under reg 8, 9, 10, 11 or 12 shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.
Reg 14 Time limit for prosecution
No prosecution shall be commenced, under the regs, after—
(a) the end of three years from the date of the commission of the offence, or
(b) the end of one year from the date of discovery of the offence by the prosecutor,
whichever is earlier.
(Note: In R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin), in relation to the similar provisions in s 19(1) TDA, it was held that "the prosecutor" is the prosecuting authority not the informant.)
A certificate signed by or on behalf of the prosecutor and stating the date on which the offence was discovered by him shall be conclusive evidence of that fact.
The time limit for summary only offences is twelve months from the date of the commission of the offence.
Reg 15 Offences committed by bodies of persons
Where an offence is committed by a corporate body is proved to have been committed with the consent or connivance of an officer of the body, or to be attributable to any neglect on his part, the officer as well as the corporate body is guilty of the offence and liable to be proceeded against and punished accordingly.
"officer" includes a director, manager, secretary or other similar officer; and a person purporting to act as any such person.
This provision is very similar to that in s 20 TDA where "consent or connivance" read "consent and connivance".
Reg 16 Offence due to the act or default of another person
Where a person commits an offence under reg 9 (misleading actions), 10 (misleading omissions), 11 (aggressive commercial practices) or 12 (Schedule 1 commercial practices), - whether or not he had a defence under regs 17 or 18 - which is due to the act or default of another, that other shall be guilty of the offence (subject to regulations 17 to 19) whether or not he is a trader and whether or not his act or default is a commercial practice.
Such other person may be charged with and convicted of the offence whether or not proceedings are taken against the primary offender and he may rely on the defences in regs 17 and 18.
(Note: This reflects s 23 TDA. It builds in the decision in Olgiersson v Kitching [1986] 1 WLR 304, that a private individual can commit an offence under the by-pass provision.
It also expressly provides that the primary offender commits an offence even if he might have had a statutory defence. The secondary offender, i.e. the person guilty by virtue of reg 16, may still seek to rely on his own statutory defence.
It does not apply to the offence in reg 8, presumably on the basis that as such offences are committed knowingly or recklessly they cannot be due to the act or default of another.)
Reg 17 Due diligence defence
1) In any proceedings against a person for an offence under regs 9, 10, 11 or 12 it is a defence for that person to prove:
(a) that the commission of the offence was due to a mistake; reliance on information supplied to him by another person; the act or default of another person; an accident; or another cause beyond his control;
and
(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.
2) A person shall not be entitled to rely on the defence by reason of reliance on information supplied to him by another person or the act or default of another person without leave of the court unless he has served on the prosecutor , at least seven clear days before the date of the hearing, a notice in writing giving such information identifying or assisting in the identification of that other person as was in his possession.
(Note: This defence is in the same terms as that provided by ss 24(1) and (2) TDA. It does not, however, apply, to offences under reg 8, presumably because of their mens rea element. By contrast s 24 TDA was held by the House of Lords, in Wings Ltd v Ellis [1985] 1 AC 272, to apply to all offences under the TDA including s 14, notwithstanding its mens rea element requiring proof of knowledge or recklessness.
Significantly the words "such an offence", as opposed to, for example, "the offence" has been transposed from s 24 TDA. A precaution may therefore be a reasonable one for the defendant to have taken even if, on the particular facts, it would not have prevented the commission of the actual offence charged. See Barker v Hargreaves [1981] RTR 197.
Note, in relation to reg 17(2), McGuire v Sittingbourne Co-operative Society Ltd (1976) 140 JP 306, where it was held, in relation to s 24 TDA, that the onus was on the defendant to investigate how and by whom the act or default relied on was committed and to give that information in the notice. In Kilhey Court Hotels Ltd v Wigan MBC [2004] EWHC Admin 2890, in relation to the similar provision in the Food Safety Act 1990, it was held that leave of the court was required to rely on the statutory defence, without giving the required notice, even if the act or default of another only becomes apparent at the trial.)
Reg 18 Innocent publication of advertisement defence
In any proceedings against a person for an offence under regs 9, 10, 11 or 12, committed by the publication of an advertisement, it shall be a defence for a person to prove that:
(a) he is a person whose business it is to publish or to arrange for the publication of advertisements;
(b) he received the advertisement for publication in the ordinary course of business; and
(c) he did not know and had no reason to suspect that its publication would amount to an offence under the regulation to which the proceedings relate.
"advertisement" includes a catalogue, a circular and a price list.
(Note: The defendant only has to prove the reg 17 or 18 defence on the balance of probabilities. See R v Carr-Briant [1943] 1 KB 607 and Garrett v Boots The Chemists Ltd (1980) 88 ITSA MR 238. The burden of proof remains with the defendant notwithstanding the presumption of innocence in article 6(2) of the European Convention on Human Rights. As Lord Nicholls said in R v Johnstone [2003] 1 WLR 1736, in relation to the statutory defence in s 92(5) Trade Marks Act 1994, "I entertain no doubt that, unless this interpretation is incompatible with article 6(2) of the Convention, s 92(5) should be interpreted as imposing on the accused person the burden of proving the relevant facts on the balance of probability. Unless he proves these facts he does not make good the defence provided by s 92(5)." Reg 18 is based on s 22 FSA.)
Enforcement
Reg 19 Duty [and power] to enforce
Every local weights and measures authority has a duty to enforce the CPUTR [other than Part 4A} within its area having regard to "the desirability of encouraging control of unfair commercial practices by such established means as it considers appropriate having regard to all the circumstances of the particular case."
Regs 20 to 25, power to make test purchases, powers of entry etc, were revoked by para 115 of Sched 2 to Consumer Rights Act 2015 (Commencement No 3, Transitional Provisions, Savings and Consequential Amendments) Order 2015. For the new variant of such powers see Sched 5 to Consumer Rights Act 2015.
The Civil Provisions
VICTOR SMITH