Misleading Practices

Unfair and Misleading Trading Practices

The Consumer Protection Act prohibits a wide range of unfair, misleading and aggressive trading practices. It derives from an EU Directive which harmonises EU rules and standards across the European Union, thereby assuring consumers of a level playing field in terms of protection.

There is a general prohibition on unfair commercial practices, as defined. An unfair commercial practice is one contrary to the principles of good faith in the trader’s field of activity or which is contrary to the skill and care that can reasonably be expected by consumers. It must be such that it is likely to cause appreciable impairment to the average consumer’s ability to make an informed choice in relation to the product or to cause the average to make a transactional decision that he or she would not otherwise make.

Certain practices are deemed unfair in all circumstances. The average consumer is presumed to be reasonably well-informed, careful and observant, taking account of the circumstances. Where the characteristic of consumers such as their age or mental infirmity, make them more vulnerable to unfair commercial practices, they are to given added protection by the required assessment of the practice from the perspective of the average member of that group.


Distorting Economic Behaviour

An unfair commercial practice is one which distorts or is likely to materially distort the economic behaviour of the average consumer to whom it is addressed with regard to the goods or service concerned. It must be such as to appreciably impair the consumer’s ability to make an informed decision, thereby causing the consumer to take a decision in relation to a transaction which he would not otherwise take.

A transactional decision means a decision whether or not to complete a transaction. It includes any decision relating to how or on what terms to do or refrain from doing any of the following:

  • purchasing a product;
  • making payment in whole or in part;
  • retaining or returning the product;
  • disposing of the product;
  • exercising contractual rights in relation to the product.

Misleading Practice

The legislation makes specific provision for “misleading” commercial practices and “aggressive” commercial practices. They are elements of the general prohibition on unfair commercial practices.  If a practice falls within one of these categories, it is likely to constitute an unfair commercial practice in itself.

A commercial practice is misleading if it includes the provision of false information or if it would be likely to cause the average consumer to be deceived or misled in relation to any matter below and would be likely to cause the average consumer to make a transactional decision that he would not otherwise make. Accordingly, it is not enough that the information is misleading. It must be such as to cause a transaction to be entered or a decision in relation to a transaction to be made, that would not otherwise have been entered or made.

It is not necessarily a defence that the information is actually true.  The information must be considered in its context, taking account of all the circumstances, in determining whether or not it is unfair.


Misleads the Average Consumer

A practice is unfair if it misleads the average consumer.  This puts an onus on the consumer to take reasonable care for his own interests. The average consumer is one who is reasonably well informed and observant, taking into account social, cultural and linguistic factors.  It is similar to the standard of a reasonable man in other contexts.  The concept is to be interpreted having regard to the case law of the European Court of Justice.

Where the practice is aimed at a particular group, the position of the average member of the group is considered.  For example, if advertisements are aimed at children, it is the average child who is considered, in assessing whether the practice is unfair.

If the commercial practice or product is a practice or product that would be likely to materially distort the economic behaviour only of a clearly identifiable group, whom the trader could reasonably be expected to foresee as being particularly vulnerable, because of their mental or physical infirmity, age or credulity, then the average consumer in this context is the average member of that vulnerable group.


Misleading Commercial Practices

Misleading commercial practices in marketing or advertising that are likely to cause confusion between a competitor and the trader and their respective products or services are prohibited.  A false representation that the trader complies with, or is bound by a code of practice, constitutes an unfair commercial practice where it fails to comply with the requirements of that code.  The commitment must be verifiable and real.

It is a misleading practice for a trader to withhold, omit or conceal information that the average consumer would require in making an informed decision in relation to a transaction.  An omission is a misleading commercial practice where it omits or conceals information that the average consumer needs in the circumstances in order to make an informed transactional decision and thereby causes him to make a transactional decision that he would not otherwise make.

In deciding on whether a commercial practice is misleading, it is to be reviewed in context, taking account of its features, including the space or time available in the relevant medium and the measures taken to make the material information available by other means. A trader must not provide information in a manner that is unintelligible, unclear, ambiguous or untimely.  A trader should identify the commercial intention of a practice if it is not apparent from its context.


Elements of Unfair and Misleading Practices I

The matters which may be false and misleading in relation to an unfair commercial practice may relate to the existence or main characteristic of the product including;

  • its characteristics, including geographical or commercial origin;
  • its availability at a particular time or place;
  • its quantity, weight or volume;
  • its benefits or fitness for purpose;
  • the results likely to be achieved;
  • the risks to consumers;
  • usage and prior history;
  • its composition, ingredients, components or accessories;
  • it specifications including its grade, standard, style, status, and model;
  • after supply/sales assistance in relation to the product;
  • consumer complaint handling;
  • method or date of delivery, supply, provision or date of manufacture;
  • results and material features of tests and checks carried out;
  • the execution and performance of a service.

Elements of Unfair and Misleading Practices II

The following factors are also relevant to the assessment of what constitutes an unfair practice

  • the existence and nature of the product;
  • the price of the product, the manner in which it is calculated and the existence or nature of a price advantage;
  • the need for any part, replacement, servicing or repair of the product;
  • the existence, extent or nature of any sponsorship or approval of the product by others;
  • the nature, attributes or rights of the trader, including its identity, assets, qualifications, and status, its affiliation or connection with others, the existence of intellectual property rights or an award, distinction approval or sponsorship which the trader has received;
  • the extent of the trader’s commitments;
  • the trader’s motive for the commercial practice;
  • the nature of the trader’s supply process;
  • the legal rights of the consumer.

Representations and Impressions

The practice must be considered in its context, taking account of all features and circumstances.

Where a commercial practice involves the creation of the impression or a representation that the product was previously offered at a particular price, then in considering whether it is an unfair commercial practice, regard is had to whether it has been displayed at that price at the same place for a reasonable period of time before the representation is made.

Where the practice involves the representation or impression that the product is being offered at a price below that recommended by the manufacturer, supplier or producer, then in considering whether it is an unfair commercial practice, consideration must be given must be given to whether it has been recommended in good faith by that person.

Where it is claimed in relation to the geographical origin of goods, the manufacture of which involves several countries, consideration is to be given to where goods underwent the last substantial and economically justifiable processing and working resulting in the manufacture a new good or representing an important stage of manufacture or production.


Misleading Practices

A commercial practice involving marketing or an advertisement is misleading if it would cause the average consumer to confuse the competitor’s product with that of the trader, the competitor’s trademark, name or other distinguishing feature so to cause the average consumer to make a transactional decision which he would not otherwise have made.

A commercial practice is misleading if it represents that the trader is bound by a code of practice, which is likely to cause the average consumer to make a decision which he would not otherwise have made and the trader fails to comply with a firm commitment in the code.

Commercial practices are misleading if the trader conceals or omits material information, which the average consumer would need in the context, in order to make an informed decision about the transaction and is such as is likely to cause the average consumer to make a decision in relation to a transaction, which he would not otherwise have made.

A commercial practice is misleading if the trader provides material information in a manner which is unclear, unintelligible, ambiguous or misleading or fails to identify its commercial intent and is such as is likely to cause the average consumer to make a decision in relation to a transaction, which he would not otherwise have made.


Some deemed Material Aspects of Commercial Practices

The following information in relation to a commercial practice is deemed material for the above purposes unless the matter is otherwise readily apparent to the consumer in the context of the commercial transaction;

  • the main characteristics of the product to the extent appropriate to the medium and the product;
  • the geographical address of the trader and its identity;
  • if it is acting as an agent, the geographical address which that other represents;
  • the price of the product including tax and if it cannot reasonably be calculated, the manner of calculation;
  • any freight, delivery and postal charges that apply or the manner in which they are calculated;
  • the handling of consumer complaints in relation to the product
  • the legal rights of the consumer to withdraw from the transaction

The above material information is in addition to and not instead of any other information that the trader is required by law to provide to a consumer, including, any information required to be provided by regulations under the consumer protection legislation.

In determining whether a commercial practice is misleading the commercial practice is considered in its factual context, taking account of all of its features and the circumstances, including the space or time available in any communications medium used, and any measures taken by the trader to make the material information available to consumers by other means.


Payment Practices

It is prohibited to levy a surcharge where one of the below methods of payments is chosen over another.  This is designed to prevent discrimination against payment in one form over the other, for example, credit card over cash.

Where a trader, represents that it will accept payment in any one of two or more of the below different methods of payment or it is his practice to accept payment by different methods, he may not impose additional charges by reason of the payment method used. The relevant methods of payment are cash, credit card, direct debit or such other form of payment as may be prescribed in the future.

Traders are deemed to impose an additional charge if the price is greater in the case of one method of payment relative to the other. It does not matter that the expenses incurred by the trader in respect of one method of payment are greater in one case than in the case of others.

Contravention in an offence. The traders practice in the previous 12 months is relevant for the purpose of the offence.

Where it is the practice of the trader to accept payment by one method only and to impose a charge for payment by that method or to accept payment by different methods and to impose a charge in respect of persons making payment by any of those methods, he must ensure that any representations made in relation to the price payable for the product and price. clearly sets out a single amount, including the charge


After Sales Service

Traders must not make a representation or create an impression that an after-supply service in relation to a product is available in the State when it is not so available.

A trader must not undertake to provide an after-sales service to consumers with whom he has communicated prior to a transaction in a language which is not an official language of the relevant State in which the trader is located and then makes such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.


Offence

The legislation makes it an offence for a trader to engage in unfair or misleading commercial practices. This includes the provision of false or misleading information which would be likely to cause the average consumer to make a transactional decision that he would not otherwise make.

It is also misleading if it would be likely to cause the average consumer to be deceived or misled in relation to the manners set out below and make a transactional decision that the consumer would not otherwise make.

A person guilty of an offence is liable on summary conviction to the following fines and penalties:

  • on a first summary conviction for any such offence, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both;
  • on any subsequent summary conviction for the same offence or any other offence under the Act to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.

If, after being convicted of an offence, the person continues to contravene the requirement or prohibition to which the offence relates, the person is guilty of a further offence on each day that the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding €500.


References and Sources

Irish Texts

Consumer Law Rights & Regulation    Donnelly & White (2014)

Consumer Protection Act 2007 Annotated  Bird (2008)

Consumer Rights Long (2004)

Commercial & Consumer Law: Annotated Statutes O’Reilly, P (2000)

UK Texts

Consumer Sales Law: The Law Relating to Consumer Sales and Financing of Goods 3rd ed

John MacLeod, James Devenney (2019)

Electronic Consumer Contracts in the Conflict of Laws 2nd ed Zeng Sophia Tang (2018)

The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution Pablo Cortes (2017)

Blackstone’s Statutes on Commercial & Consumer Law 2017-2018 Francis Rose

Consumer and Trading Standards: Law and Practice 2017 Bryan Lewin, Jonathan Kirk

Woodroffe and Lowe’s Consumer Law and Practice Woodroffe and Lowe’s Consumer Law and Practice 10th ed Geoffrey Woodroffe, Chris Willett, Christian Twigg-Flesner (2016)

Butterworths Trading and Consumer Law Looseleaf Annual Subscription Deborah L. Parry, Roland Rowell (2016)

Butterworths Commercial and Consumer Law Handbook 8th ed Richard B. Mawrey, Tobias Riley-Smith (2015

Consumer and Trading Standards: Law and Practice 4th ed

Legislation

Sale of Goods Act 1893 56 & 57

Sale of Goods and Supply of Services Act 1980

The 2011 Report of the Sales Law Review Group,

Consumer Protection Act 2007 19/2007

Competition and Consumer Protection Act 2014 29/2014

Orders Re Price Display (retained

Prices Act 1958.

Prices (Amendment) Act 1965

Prices (Amendment) Act1972

Orders made under Prices Acts 1958 and 1965 were carried over on repeal of the 1958 and 1965 Acts by 19/2007

Prices and Charges (Tax-inclusive Statements) Order 1973, S.I.

Charges (Hairdressing) Display Order 1976, S.I. No. 156 of 1976

Retail Prices (Food in Catering Establishments) Display Order 1984, S.I. No. 213 of 1984

Consumer Information (Advertisements) (Disclosure of Business Interest) Order 1984, S.I. No. 168 of 1984417

Consumer Information (Advertisements For Concert Or Theatre Performances) Order 1997, S.I. No. 103 of 1997

Retail Price (Diesel and Petrol) Display Order 1997, S.I. No. 178 of 1997

Retail Price (Beverages in Licensed Premises) Display Order 19/2007

Consumer Information Act Orders

Consumer Information (Advertisements For Airfares) Order 2000, S.I. No. 468 of 2000

Consumer Protection Act 2007 (Commencement) Order 2007,S.I. No. 178 of 2007

Consumer Protection Act 2007 (Establishment Day) Order 2007,S.I. No. 179 of 2007

Consumer Protection (Fixed Payment Notice) Regulations 2007,S.I. No. 689 of 2007

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2011, S.I. No. 560 of 2011

Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2012, S.I. No. 143 of 2012

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2012, S.I. No. 435 of 2012

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2013, S.I. No. 409 of 2013

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2014, S.I. No. 458 of 2014

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2015, S.I. No. 457 of 2015

European Communities (Cooperation Between National Authorities Responsible for the

Enforcement of Consumer Protection Laws) Regulations 2006, S.I. No. 290 of 2006 [Minister

European Communities (Cooperation Between National Authorities Responsible for the

Enforcement of Consumer Protection Laws) (Amendment) Regulations 2008, S.I. No. 316 of 2008  European Communities (Single-Member Private Limited Companies)European Communities (Protection of Consumers in Respect of Contracts made by Means of Distance Communication) (Amendment) Regulations 2010, S.I. No. 370 of 2010

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) Regulations 2011, S.I. No. 73 of 2011

European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2012, S.I. No. 485 of 2012

European Union (Public Limited Companies) (Directive 2012/ European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2013, S.I. No. 122 of 2013

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2013, S.I. No. 160 of 2013

European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) (No. 2) Regulations 2013, S.I. No. 200 of 2013

European Union (Consumer  nformation, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) (Amendment) Regulations 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations

2015, S.I. No. 368 of 2015

European Union (Traded Companies — Corporate Governance Statements) Regulations 2015, S.I. No. 423 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016

Competition and Consumer Protection Act 2014 (Commencement) Order 2014, S.I. No. 366 of 2014

Competition and Consumer Protection Act 2014 (Establishment Day) Order 2014, S.I. No. 367 of 2014

Consumer Protection Act 2007 (Grocery Goods Undertakings) Regulations 2016, S.I. No. 35 of 2016

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2016, S.I. No. 479 of

2016

District Court (Consumer Protection Act 2007) Rules 2009, S.I. No. 106 of 2009

European Communities (Unfair Terms in Consumer Contracts) Regulations 1995, S.I. No. 27 of 1995 [

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2000, S.I. No. 307 of 2000

European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003, S.I. No. 11 of 2003

European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) (Amendment) Regulations 2005, S.I. No. 71 of 2005

European Communities (International Financial  European Communities (Cooperation Between National Authorities Responsible for the Enforcement of Consumer Protection Laws) Regulations 2006, S.I. No. 290 of 2006

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004, S.I. No. 853 of 2004

Circuit Court Rules (Consumer Protection Act 2007) 2008, S.I. No. 585 of 2008

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Communities (Unfair Terms in Consumer Contracts) Amendment) Regulations 2013, S.I. No. 160 of 2013

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations 2015, S.I. No. 368 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016