Misleading Practices
Consumer Protection Act
Commercial Practices
Chapter 1
Unfair Commercial Practices
Annotations:
Editorial Notes:
E32
Power granted to Minister for Transport, Tourism and Sport, in determining whether an operator has satisfied or continues to satisfy the requirement of good repute, to consider whether the operator or a person holding a specified position with the operator has, within the previous 10 years, been convicted of an offence under Part (4.12.2011) by European Union (Occupation of Road Transport Operator) Regulations 2011 (S.I. No. 697 of 2011), reg. 6 and sch.
E33
Obligation imposed on persons who hold a specified position with an operator and who is or has been convicted of an offence under Part to inform the operator in writing of the fact of the conviction (4.12.2011) by European Union (Occupation of Road Transport Operator) Regulations 2011 (S.I. No. 697 of 2011), reg. 8.
General prohibition on unfair commercial practices.
41.— (1) A trader shall not engage in an unfair commercial practice.
(2) A commercial practice is unfair if it—
(a) is contrary to one or both of the following (the requirements of professional diligence):
(i) the general principle of good faith in the trader’s field of activity;
(ii) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers,
and
(b) would be likely to—
(i) cause appreciable impairment of the average consumer’s ability to make an informed choice in relation to the product concerned, and
(ii) cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(3) In determining whether a commercial practice is unfair under subsection (2), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.
Chapter 2
Misleading Commercial Practices
General prohibition on misleading commercial practices.
42.— (1) A trader shall not engage in a misleading commercial practice.
(2) Without prejudice to the amendments of the Hallmarking Act 1981 made by section 99, sections 43 to 46 specify the various circumstances in which a commercial practice is misleading.
Misleading: false, misleading or deceptive information.
43.— (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(2) A commercial practice is misleading if it would be likely to cause the average consumer to be deceived or misled in relation to any matter set out in subsection (3) and to make a transactional decision that the average consumer would not otherwise make.
(3) The following matters are set out for the purposes of subsections (1) and (2):
(a) the existence or nature of a product;
(b) the main characteristics of a product, including, without limitation, any of the following:
(i) its geographical origin or commercial origin;
(ii) its availability, including, without limitation, its availability at a particular time or place or at a particular price;
(iii) its quantity, weight or volume;
(iv) its benefits or fitness for purpose;
(v) the results to be expected from it;
(vi) the risks it presents to consumers;
(vii) its usage or prior history;
(viii) its composition, ingredients, components or accessories;
(ix) the specifications of the product, including, without limitation, the grade, standard, style, status or model of the product;
(x) the after-supply customer assistance available to consumers in relation to the product;
(xi) the handling of consumer complaints in relation to the product;
(xii) the method or date of—
(I) the product’s delivery, supply or provision, or
(II) in the case of goods, the product’s manufacture;
(xiii) the results and material features of tests or checks carried out on the product;
(xiv) in relation to a service, its execution or performance;
(c) the price of the product, the manner in which that price is calculated or the existence or nature of a specific price advantage;
(d) the need for any part, replacement, servicing or repair in relation to the product;
(e) the existence, extent or nature of any approval or sponsorship (direct or indirect) of the product by others;
(f) the nature, attributes or rights of the trader, including, without limitation, the following:
(i) the trader’s identity, qualifications, assets or status;
(ii) the trader’s affiliation or connection with others;
(iii) the existence, extent or nature of—
(I) any industrial, commercial or intellectual property rights the trader may have, or
(II) any award, distinction, approval or sponsorship (direct or indirect) the trader has or has received;
(g) the extent of the trader’s commitments;
(h) the trader’s motives for the commercial practice;
(i) the nature of the trader’s supply process;
(j) the legal rights of a consumer (whether contractual or otherwise) or matters respecting when, how or in what circumstances those rights may be exercised.
(4) If the commercial practice in subsection (2) involves the provision of information, it is not a defence in any proceeding to show that the information is factually correct.
(5) In determining whether a commercial practice under subsection (1) or (2) is misleading, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.
(6) Without limiting subsection (5)—
(a) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product was previously offered at a different price or at a particular price, consideration shall be given to whether the product was previously offered openly and in good faith at that price and at the same place for a reasonable period of time before the representation was made, and
(b) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product is being offered by a trader at or below a price recommended by the manufacturer, producer or supplier of the product (other than the trader), consideration shall be given to whether that recommended price was one recommended in good faith by that manufacturer, producer or supplier.
(7) In determining the geographical origin of goods the manufacture or production of which involves more than one country, consideration shall be given to where the goods underwent their last substantial and economically justified processing or working (in a place equipped for that purpose), resulting in the manufacture of new goods or representing an important stage of the manufacture or production.
Annotations:
Editorial Notes:
E34
Comparative marketing communications confirmed prohibited if, as regards the comparison, it is a misleading commercial practice under section (20.11.2007) by European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (S.I. No. 774 of 2007), reg. 4(2)(b).
Misleading: competitor or product confusion in marketing or advertising.
44.— (1) A commercial practice involving marketing or advertising is misleading if it would be likely to cause the average consumer—
(a) to confuse—
(i) a competitor’s product with the trader’s product, or
(ii) a competitor’s trade name, trade mark or some other distinguishing feature or mark with that of the trader,
and
(b) to make a transactional decision that the average consumer would not otherwise make.
(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.
Annotations:
Editorial Notes:
E35
Comparative marketing communications confirmed prohibited if, as regards the comparison, it is a misleading commercial practice under section (20.11.2007) by European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (S.I. No. 774 of 2007), reg. 4(2)(b).
Misleading: non-compliance with commitment under code of practice by which trader is bound.
45.— (1) A commercial practice is misleading if—
(a) it involves a representation that the trader abides, or is bound, by a code of practice,
(b) the representation referred to in paragraph (a) would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make, and
(c) the trader fails to comply with a firm commitment in that code of practice.
(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.
(3) For the purposes of this section, a firm commitment in a code of practice is one that is not merely aspirational but is capable of being verified.
Annotations:
Editorial Notes:
E36
Comparative marketing communications confirmed prohibited if, as regards the comparison, it is a misleading commercial practice under section (20.11.2007) by European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (S.I. No. 774 of 2007), reg. 4(2)(b).
Misleading: withholding, omitting or concealing material information.
46.— (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision (“material information”) and such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(2) A commercial practice is misleading if—
(a) the trader—
(i) provides material information referred to in subsection (1) in a manner that is unclear, unintelligible, ambiguous or untimely, or
(ii) fails to identify the commercial intent of the practice (if such intent is not already apparent from the context),
and
(b) such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(3) If a commercial practice is or includes an invitation to purchase, each of the following constitutes material information for the purposes of this section, unless already apparent to the consumer in the context of the commercial practice:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address of the trader, the identity of the trader (such as his or her trading name) and, if the trader is acting in a consumer transaction as an agent of another trader, the geographical address and the identity of that other trader;
(c) the price of the product (inclusive of taxes) or, if the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated;
(d) any freight, delivery or postal charges that apply in relation to the product or, if such charges cannot reasonably be calculated in advance, a statement of the fact that such charges will apply and be payable by the consumer;
(e) the handling of consumer complaints in relation to the product or the arrangement for payment, delivery or performance, if such handling or arrangement does not meet or accord with—
(i) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers, or
(ii) the general principle of good faith in the trader’s field of activity;
(f) if applicable, the legal rights of a consumer (whether contractual or otherwise) to withdraw from or cancel the consumer transaction.
(4) The material information set out in subsection (3) is in addition to and not instead of any other information that the trader is required by law to provide to a consumer, including, without limitation, any information required to be provided by regulations under this Act.
(5) In determining whether a commercial practice is misleading under this section, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances, including—
(a) the space or time available in any communications medium used, and
(b) any measures taken by the trader to make the material information available to consumers by other means.
Annotations:
Editorial Notes:
E37
Comparative marketing communications confirmed prohibited if, as regards the comparison, it is a misleading commercial practice under section (20.11.2007) by European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (S.I. No. 774 of 2007), reg. 4(2)(b).
Offence: misleading commercial practices.
47.— A trader who engages in any misleading commercial practice described in section 43(1) or (2) 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 .
Prohibition on surcharges where one method of payment chosen in preference to another.
48.— (1) In this section—
“cash” means cash that is legal tender;
“relevant method” , in relation to payment, means each of the following methods of payment—
(a) cash,
(b) credit card,
(c) direct debit,
(d) any other method or methods of payment prescribed by the Minister.
(2) In this section a reference to a representation includes a reference to a representation made at any stage up to the time the trader accepts payment in respect of the product concerned.
(3) Where—
(a) a trader makes a representation that the trader will accept payment in respect of a product by any one of 2 or more different relevant methods, or
(b) it is the practice of a trader to accept payment in respect of a product by different relevant methods,
the trader shall not impose an additional charge on any person by reason of the person’s making payment in respect of the product by one of the relevant methods (to which the foregoing representation relates or as regards which the foregoing practice exists) as distinct from another of them.
(4) For the purposes of subsection (3)—
(a) without limiting any of the other means by which that subsection may be contravened, a trader shall be deemed to impose an additional charge, by reason of the person concerned making payment as mentioned in that subsection, if the price charged by the trader in respect of the product concerned is, where one of the relevant methods of payment is used by that person, greater than the price that would be so charged were that person to use another of them,
(b) if the representation or practice referred to in that subsection relates not only to relevant methods of payment but to one or more other methods of payment as well, that fact is immaterial, and
(c) it is immaterial that the trader can show that any expenses incurred by the trader in accepting payment by one of the relevant methods are greater than those incurred by the trader in accepting payment by another of them.
(5) A trader who contravenes subsection (3) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.
(6) In proceedings for an offence under this section, where evidence is given that on a particular occasion the defendant accepted payment in respect of the product concerned by a relevant method which was different from that which the defendant accepted in respect of the product on another occasion in the period of 12 months preceding the first-mentioned occasion (and that previous method is also a relevant method), then it shall be presumed, until the contrary is proved, that a practice existed on the part of the defendant to accept payment in respect of the product by those foregoing methods.
Requirement that surcharge (where otherwise permissible) be stated as part of price.
49.— (1) Where it is the practice of a trader to accept payment in respect of a product—
(a) by only one relevant method and to impose a charge on a person for the person’s making payment in respect of the product by that method, or
(b) by different relevant methods and to impose on a person the same charge for the person’s making payment in respect of the product by any of those methods,
the trader shall ensure that any representation made by the trader, or on the trader’s behalf, in relation to the price payable in respect of the product, states clearly that price as a single amount inclusive of the foregoing charge.
(2) For the purposes of subsection (1), it is immaterial that the trader also accepts payment in respect of the product concerned by one or more methods of payment that are not relevant methods of payment and the reference in that subsection to the practice of a trader to accept payment in respect of a product by only one relevant method shall be read accordingly.
(3) A trader who contravenes subsection (1) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.
(4) In a case falling within paragraph (a) or (b) of subsection (1), nothing in that subsection prevents the inclusion in any representation referred to in that subsection of—
(a) an indication that the single price stated is inclusive of a charge for making payment by the method concerned or, as the case may be, any of the methods concerned, or
(b) an indication of the amount of such charge.
(5) In this section ‘relevant method’, in relation to payment, has the same meaning as it has in section 48.
Consumer information regulations.
50.— (1) Subject to subsection (5), if the Minister considers it to be in the interest of consumers to have a product, or a class or type of product, marked with or accompanied by any information (or both), the Minister may make regulations—
(a) prescribing the product or class or type of product,
(b) prescribing—
(i) any stamps, marks, tags and labels for use on those products and the manner of their use, or
(ii) any information to accompany those products when they are supplied to consumers by traders, or
(iii) the matters referred to in both of the foregoing subparagraphs,
(c) requiring traders who supply a prescribed product, or a product of a prescribed class or type, to—
(i) stamp, mark, tag or label them in accordance with regulations made under paragraph (b)(i), or
(ii) have prescribed information under paragraph (b)(ii) accompany those products in the manner and form specified in the regulations, or
(iii) do the things referred to in both of the foregoing subparagraphs,
and
(d) regulating or prohibiting the supply of a prescribed product, or a product of a prescribed class or type, if any regulation under paragraph (b) or (c) is not complied with.
(2) Subject to subsection (5), if the Minister considers it to be in the interest of consumers that advertisements for a product, or a class or type of product, contain or refer to any information relating to those products (or do both those things), the Minister may make regulations—
(a) prescribing the product, or class or type of product, and that information, and
(b) requiring traders who market or advertise those products to do either or both of the following, as the Minister considers necessary or appropriate:
(i) include that information in their advertisements and to do so in the manner and form specified in the regulations;
(ii) specify in their advertisements the means by which that information may be obtained by a consumer.
(3) The Minister may make different regulations under this section for—
(a) different classes or types of products or traders,
(b) different classes or types of advertisements,
(c) different circumstances, and
(d) different geographical areas of the State.
(4) A regulation made under this section may apply to the whole State or to a specified geographical area of the State.
(5) The Minister may not make a regulation under this section unless the Minister is satisfied that in the context—
(a) the average consumer would need the stamp, mark, tag, label or information in order to make an informed transactional decision (“material information”), and
(b) if such material information was withheld, omitted or concealed, it would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(6) Subsection (5) does not apply in respect of regulations that may be made under subsection (1) relating to indications of the standard of fineness of articles of precious metal.
Annotations:
Editorial Notes:
E38
Power pursuant to section exercised (1.07.2012) by Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2012 (S.I. No. 143 of 2012), in effect as per reg. 2.
Offences: contravening consumer information regulations.
51.— (1) A trader who supplies a product in contravention of a regulation under section 50(1) commits an offence.
(2) If an advertisement fails to comply with any requirement of a regulation under section 50(2), any trader who publishes the advertisement or causes it to be published commits an offence.
(3) A trader who commits an offence under subsection (1) or (2) is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.
Chapter 3
Aggressive Commercial Practices
General prohibition on aggressive commercial practices.
52.— A trader shall not engage in an aggressive commercial practice.
Aggressive commercial practices.
53.— (1) A commercial practice is aggressive if by harassment, coercion or undue influence it would be likely to—
(a) cause significant impairment of the average consumer’s freedom of choice or conduct in relation to the product concerned, and
(b) cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(2) In determining whether a commercial practice is aggressive under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.
(3) Without limiting subsection (2), in determining whether the commercial practice employs harassment, coercion or undue influence, the following shall be taken into account:
(a) the timing, location, nature or persistence of the commercial practice;
(b) the use of threatening or abusive language or behaviour by the trader;
(c) the exploitation of a consumer’s misfortune or circumstance when the trader is aware that the consumer’s judgment is impaired as a result of the gravity of the misfortune or circumstance, in order to influence the consumer’s transactional decision;
(d) the imposition of onerous or disproportionate non-contractual barriers by the trader when the consumer wishes to terminate the contract, exercise a contractual right or switch to another product or trader;
(e) the use of threats by the trader to—
(i) take action or initiate proceedings against the consumer when the trader has no legal basis for taking such action or initiating such proceedings, or
(ii) do something unlawful.
(4) In this section, “undue influence” means exploiting a position of power in relation to a consumer so as to apply pressure (without necessarily using or threatening to use physical force) in a way that significantly limits the consumer’s ability to make an informed choice in relation to the trader’s product.
Offence: aggressive commercial practices.
54.— A trader who engages in any aggressive commercial practice described in section 53(1) 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 .
Consumer Rights Act
PART 9
Amendment of Consumer Protection Act 2007
Amendment of section 2 of Act of 2007
152. Section 2 of the Act of 2007 is amended, in subsection (1)—
(a) by the substitution of the definition “authorised officer” for the following definition:
“‘authorised officer’—
(a) in relation to the functions performed by the Competition and Consumer Protection Commission under this Act, has the same meaning as it has in the Competition and Consumer Protection Act 2014 , and
(b) in relation to the functions performed by the Commission for Communications Regulation under this Act, has the same meaning as it has in section 39 of the Communications Regulation Act 2002 ;”,
(b) by the substitution for the definition of “product” of the following definition:
“‘product’ means any goods or services including immovable property, a digital service and digital content, as well as rights and obligations;”,
(c) in the definition of “relevant statutory provisions”—
(i) by the deletion of paragraphs (k) and (l),
(ii) by the deletion of “and”, where it occurs immediately after paragraph (m), and
(iii) by the insertion after paragraph (n) of the following:
“, and
(o) the Act of 2022.”,
and
(d) by the insertion of the following definitions:
“‘Act of 2022’ means the Consumer Rights Act 2022;
‘digital content’ has the same meaning as it has in the Act of 2022;
‘digital service’ has the same meaning as it has in the Act of 2022;
‘distance contract’ has the same meaning as it has in Part 5 of the Act of 2022;
‘online marketplace’ means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers;
‘ranking’ means the relative prominence given to products, as presented, organised or communicated by the trader, irrespective of the technological means used for such presentation, organisation or communication;”.
Amendment of section 41 of Act of 2007
153. Section 41 of the Act of 2007 is amended by the insertion of the following subsection after subsection (3):
“(4) A trader who continues to engage in a commercial practice that has been found to be unfair by a court under this section 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.”.
Misleading: marketing of goods as identical where significantly different
154. The Act of 2007 is amended by the insertion of the following section after section 44:
Misleading Practice
“44A. (1) A commercial practice is misleading if—
(a) unless justified by legitimate and objective factors, it involves any marketing of goods in a Member State as being identical to goods marketed in other Member States where the goods have significantly different composition or characteristics, and
(b) the marketing would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.”.
Amendment of section 46 of Act of 2007
155. Section 46 of the Act of 2007 is amended—
(a) in subsection (3), by—
(i) the substitution of the following paragraph for paragraph (e):
“(e) the arrangements for payment, delivery and performance if such arrangements do not meet or accord with—
(i) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers, or
(ii) the general principle of good faith in the trader’s field of activity;”,
and
(ii) the insertion of the following paragraph after paragraph (f):
“(g) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.”,
(b) by the insertion of the following subsections after subsection (3):
“(3A) (a) Where consumers are provided with the option of searching for products offered by different traders or consumers on the basis of a query in the form of a keyword, phrase or other input (and irrespective of where transactions are ultimately concluded) general information relating to—
(i) the main parameters determining the ranking of products presented to a consumer as a result of the search query, and
(ii) the importance of those parameters relative to other parameters,
that is made available in a specific section of the online interface directly and easily accessible from the page where the query results are presented shall be treated as material information for the purposes of this section.
(b) Paragraph (a) does not apply to any person who provides or offers to provide an online search engine to consumers.
(3B) Where a trader provides access to reviews by consumers of products, information in relation to whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the products shall be treated as material information for the purposes of this section.”,
and
(c) in subsection (4), by the substitution of “subsections (3) to (3B)” for “subsection (3)”.
Amendment of section 47 of Act of 2007
156. Section 47 of the Act of 2007 is amended by the insertion of “, 44(1), 44A, 45(1) or 46(1) or (2)” after “43(1) or (2)”.
Amendment of section 55 of Act of 2007
157. Section 55(1) of the Act of 2007 is amended by—
(a) the insertion of the following paragraph after paragraph (q):
“(qa) providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results;”,
and
(b) the insertion of the following paragraphs after paragraph (y):
“(z) reselling event tickets to consumers if the trader acquired them by using automated means to circumvent any limit on the number of tickets that a person may buy or any other rules applicable to the purchase of tickets;
(za) stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that the reviews originate from such consumers;
(zb) submitting or commissioning a person to submit false reviews or endorsements by consumers, or misrepresenting reviews or social endorsements by consumers, in order to promote products.”.
Amendment of section 67 of Act of 2007
158. Section 67 of the Act of 2007 is amended—
(a) by the deletion of paragraph (g), and
(b) by the insertion of the following paragraphs after paragraph (n):
“(o) any contravention of section 7 of the Act of 2022;
(p) a failure or refusal by a trader to provide a remedy to which a consumer has a right under section 23 (1)(b), 26 (2)(a), 29 (1), 61 (1), 62 (2)(a), 85 (1) or section 86 (2)(a) of the Act of 2022;
(q) where a consumer is entitled to reimbursement under section 31 , 68 or 90 of the Act of 2022, a failure or refusal by a trader to reimburse the consumer;
(r) any contravention of section 39 (1), 44 (1) or (2), 71 (1) or 94 (1) of the Act of 2022;
(s) any contravention of Part 5 of the Act of 2022;
(t) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is unfair under section 132 of that Act;
(u) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is presumed to be unfair under section 133 of that Act;
(v) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is not transparent in contravention of section 134 (1) of that Act;
(w) any contravention of section 140 of the Act of 2022,”.
Prohibited Practices
Amendment of section 71 of Act of 2007
159. Section 71 of the Act of 2007 is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) In this section, ‘prohibited act or practice’ does not include:
(a) a contravention of section 59(2) (respecting weighing facilities in grocery retail);
(b) a contravention of section 60(1) (respecting preventing the reading of prices);
(c) in relation to a financial service (within the meaning of the Central Bank Act 1942) provided by a trader who is a regulated financial service provider (within the meaning of that Act), a failure or refusal by the trader to provide—
(i) a remedy to which a consumer is entitled under section 85 (1) or 86 (2)(a) of the Act of 2022, or
(ii) a reimbursement to which a consumer is entitled under section 90 of the Act of 2022;
(d) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is unfair under section 132 of that Act;
(e) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is presumed to be unfair under section 133 of that Act;
(f) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is not transparent in contravention of section 134 (1) of that Act.”,
(b) by the insertion of the following subsection after subsection (2):
“(2A) An application may be made under subsection (2) for—
(a) an interim order,
(b) an interlocutory order, or
(c) an order for an indefinite period or for a period specified in the application.”,
and
(c) by the insertion of the following subsection after subsection (6):
“(6A) Where an application under this section relates to a particular prohibited act or practice which relates to any of Parts 2 to 5 of the Act of 2022, an order may be made in relation to any similar prohibited act or practice (or prohibited act or practice having like effect) committed or engaged in by a trader.”.
Amendment of section 73 of Act of 2007
Prohibited Practices
160. Section 73 of the Act of 2007 is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) In this section, ‘prohibited act or practice’ does not include:
(a) a contravention of section 59(2) (respecting weighing facilities in grocery retail);
(b) a contravention of section 60(1) (respecting preventing the reading of prices);
(c) in relation to a financial service (within the meaning of the Central Bank Act 1942) provided by a trader who is a regulated financial service provider (within the meaning of that Act), a failure or refusal by the trader to provide—
(i) a remedy to which a consumer is entitled under section 85 (1) or 86 (2)(a) of the Act of 2022, or
(ii) a reimbursement to which a consumer is entitled under section 90 of the Act of 2022.”,
and
(b) by the substitution of the following subsection for subsection (7):
“(7) Despite subsection (6), the Commission may—
(a) apply for an order against a trader under section 71, or
(b) serve a compliance notice on a trader under section 75,
if the trader fails to comply with the terms and conditions of an undertaking under this section.”.
Consumer’s right to price reduction and termination of contract
161. The Act of 2007 is amended by the insertion of the following section after section 74:
“74A. (1) A consumer who is aggrieved by a prohibited act or practice shall have the following remedies—
(a) a right to a reduction in the price payable under the contract, and
(b) a right to terminate the contract.
(2) The conditions under which the consumer shall have the right to those remedies, and the obligations of the trader and the consumer in respect of the remedies, shall be prescribed for the purposes of this section.”.
Amendment of section 75 of Act of 2007
162. Section 75 of the Act of 2007 is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) In this section, ‘prohibited act or practice’ does not include—
(a) a contravention of a regulation under section 57 (respecting price display regulations),
(b) in relation to a financial service (within the meaning of the Central Bank Act 1942) provided by a trader who is a regulated financial service provider (within the meaning of that Act), a failure or refusal by the trader to provide—
(i) a remedy to which a consumer is entitled under section 85 (1) or 86 (2)(a) of the Act of 2022, or
(ii) a reimbursement to which a consumer is entitled under section 90 of the Act of 2022.”,
(b) in subsection (3)(d), by the substitution of “relevant court specified in the notice” for “District Court”,
(c) by the insertion of the following subsection after subsection (3):
“(3A) Where the person on whom the compliance notice is served is a trader, an authorised officer may include a requirement under subsection (3)(b) that the trader refund any payments made by the consumer in any transaction relating to the contravention to which the notice relates;”,
(d) in subsection (5), by the substitution of “relevant court specified in the notice” for “District Court in the district court district in which the notice was served”, and
(e) by the insertion of the following subsection after subsection (14):
“(15) In this section, ‘relevant court’ means—
(a) the District Court,
(b) the Circuit Court, or
(c) the High Court.”.
Amendment of section 85 of Act of 2007
166. Section 85 of the Act of 2007 is amended—
(a) in subsection (1)—
(i) in paragraph (a), by the insertion of “47 (respecting misleading commercial practices) or” after “section”,
(ii) by the insertion of the following paragraph after paragraph (b):
“(ba) Parts 4 to 6 of the Act of 2022;”,
(iii) by the insertion of the following paragraph after paragraph (c):
“(ca) Regulation 7, 8, 13 or 14 of the European Communities (Directive 2000/31/EC) Regulations 2003 ( S.I. No. 68 of 2003 );”,
and
(iv) by the deletion of paragraph (d),
(b) in subsection (3)(c), by the substitution of “the prescribed amount specified in the notice” for “the amount of €300”, and
(c) by the insertion of the following subsection after subsection (6):
“(6A) The amount of a fixed payment, being not more than €1,500, may be prescribed and different amounts may be prescribed in relation to the different relevant offences specified in subsection (1).”.
Amendment of section 90 of Act of 2007
167. Section 90(1) of the Act of 2007 is amended by the substitution of the following paragraph for paragraph (e):
“(e) the Act of 2022;”.
Amendment of section 91 of Act of 2007
168. Section 91 of the Act of 2007 is amended—
(a) by the substitution of “sections 66(1) and 74A” for “section 66(1)”, and
(b) by the substitution of “any product” for “any goods or the provision of any services.”.
Amendment of Schedule 4 to Act of 2007
169. Schedule 4 to the Act of 2007 is amended—
(a) by the deletion of the following:
“
No. 16 of 1980
Sale of Goods and Supply of Services Act 1980
”,
S.I. No. 168/1984 –
Consumer Information (Advertisements) (Disclosure of Business Interest) Order, 1984.
CONSUMER INFORMATION (ADVERTISEMENTS) (DISCLOSURE OF BUSINESS INTEREST) ORDER, 1984.
I, JOHN BRUTON, Minister for Industry, Trade, Commerce and Tourism, in exercise of the powers conferred on me by section 11 of the Consumer Information Act, 1978 (No. 1 of 1978), as adapted by the Trade, Commerce and Tourism (Alteration of Name of Department and Title of Minister) Order, 1983 ( S.I. No. 384 of 1983 ), and after consultation with such persons as appear to me to be substantially interested in the general subject of the Order following, hereby make the following Order with respect to which, pursuant to section 26 (4) of that Act, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each House:
1. (1) This Order may be cited as the Consumer Information (Advertisements) (Disclosure of Business Interest) Order, 1984.
(2) This Order shall come into operation one month after the date of its making.
2. (1) Subject to paragraphs (2) and (3) of this Article, a person who supplies goods in the course of a trade, business or profession shall not publish or cause to be published an advertisement in relation to such supply unless it is reasonably clear from the advertisement that the goods are being supplied in the course of a trade, business or profession.
(2) Paragraph (1) of this Article shall not apply in relation to advertisements which are concerned only with sales by auction or competitive tender if it is clearly indicated in the advertisement that the sale is by auction or competitive tender.
(3) Paragraph (1) of this Article applies whether the person who is seeking to supply the goods is acting for himself or on behalf of another, and, where he is acting as an agent, whether in the course of a trade, business or profession carried on by him or not; but the reference in that paragraph to a trade, business or profession does not include any trade, business or profession carried on by the agent.
GIVEN under my Official Seal, this 4th day of July, 1984.
JOHN BRUTON,
Minister for Industry, Trade, Commerce
and Tourism.
EXPLANATORY NOTE.
This Order provides that a person who supplies goods in the course of a trade, business or profession shall not publish or cause to be published an advertisement in relation to such supply unless it is reasonably clear from the advertisement that the goods are being supplied in the course of a trade, business or profession.
This requirement does not apply to an advertisement which indicates clearly that the sale is to be by auction or competitive tender.
S.I. No. 442/2019 –
Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2019
I, HEATHER HUMPHREYS, Minister for Business, Enterprise and Innovation, in exercise of the powers conferred on me by section 50 of the Consumer Protection Act 2007 (No. 19 of 2007), as adapted by the Jobs, Enterprise and Innovation (Alternation of Name of Department and Title of Minister) Order 2017 (S.I. No. 364 of 2017), hereby make the following regulations:
1. These Regulations may be cited as the Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2019.
2. These Regulations shall come into operation on the 1st day of October 2019.
3. In these Regulations “approved hallmark” and “articles of precious metal” have the meanings assigned to them by section 1 of the Hallmarking Act 1981 (No. 18 of 1981), as amended by section 2 of the Hallmarking (Amendment) Act 2019 (No. 2 of 2019).
4. A trader supplying an article of precious metal to a consumer shall ensure that the article is marked with an approved hallmark.
5. Subject to Regulation 6, a trader shall not supply an article of precious metal to a consumer unless the article is marked with an approved hallmark.
6. An article of precious metal which complies with Regulation 3 of the European Communities (Hallmarking of Articles Imported from Other Member States) Regulations 2001 ( S.I. No. 579 of 2001 ) shall be deemed to comply with Regulation 5.
7. A trader who supplies an article of precious metal from premises to which the public has access shall exhibit a notice in the form set out in the Schedule.
8. A notice exhibited pursuant to Regulation 7 shall—
(a) be located in a position so as to be clearly visible and easily accessible to a consumer before or immediately after entering the premises,
(b) be displayed on not less than A4 size paper, and
(c) contain letters and figures at least three millimetres in height and of proportionate width, which are not hidden, obscured, or interrupted by other pictorial or written matter.
9. The Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2012 ( S.I. No. 143 of 2012 ) are revoked.
SCHEDULE
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GIVEN under my Official Seal,
29 August, 2019.
HEATHER HUMPHREYS,
Minister for Business, Enterprise and Innovation.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
These Regulations require that articles of precious metal being supplied to consumers are marked with approved hallmarks and prohibit the supply of such articles to consumers in the absence of hallmarks. These Regulations also require that a certain notice is placed at premises at which traders supply articles of precious metal to the public.
These Regulations revoke the Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2012 ( S.I. No. 143 of 2012 ).
These Regulations may be cited as the Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2019.