New Consumer Protection From Unfair Trading

May 2008 saw the implementation in the UK of the

Unfair Commercial Practices Directive (the Directive) by the

introduction of the Consumer Protection from Unfair Trading

Regulations 2007 (the Regulations), which will result in

changes to the existing UK consumer protection

laws.

The Directive applies to business practices (i.e. not

private transactions) that affect consumers. It aims to

harmonise unfair trading laws in all EU Member States, and

contains a general ban on unfair commercial practices that

distort the economic behaviour of the typical consumer. It also

prohibits misleading and aggressive practices that are likely

to deceive the average consumer, and lists more than 30

specific practices that are banned in all circumstances -

for example, displaying a trust mark, quality mark or

equivalent without having obtained the necessary authorisation.

It applies to actions, omissions and other conduct directly

connected to the promotion, sale or supply of products or

services to or from consumers.

Infringement or contravention of the Regulations may lead to

civil, and possibly also criminal, penalties, and the burden of

proof will depend on which prohibition has been breached. The

general prohibition will require the prosecution to prove that

the trader has knowingly or recklessly breached the

requirements of diligence. A breach of the remaining

prohibitions will be strict liability crimes, as the fact that

the Regulations have been breached is enough. The duty of

enforcement will fall on the OFT and Trading Standards

Officers, and breaches will subject the offending businesses to

a potential unlimited fine or imprisonment of up to two

years.

In summary, the Regulations will simplify and plug gaps in

existing UK consumer protection...