Oppressive Practices

Prohibited Commercial Practices

Aggressive commercial practices are prohibited. An aggressive commercial practice is one which by harassment coercion or undue influence, is likely to cause significant impairment of the average consumer’s freedom of choice of conduct in relation to the product concerned and cause that consumer to undertake a transaction which he would not otherwise undertake.

The entire circumstances are considered in determining whether the practice is aggressive including

  • the timing, location, nature, and persistence of the commercial practice;
  • the use of threatening or abusive language or behaviour by the trader;
  • the exploitation of a consumer’s misfortune or circumstances 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;
  • 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;
  • the use of threats by the trader to take action or initiate proceedings against the consumer when the trader has no legal basis for taking such action or initiating such proceedings, or
  • doing something unlawful.

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.

Aggressive and prohibited commercial practices are offences, which may be prosecuted summarily or on indictment.


Aggressive Commercial Practices

A number of specific aggressive (prohibited) commercial practices are specified in the legislation

  • making a representation or creating an impression that a consumer cannot leave the premises until a contact is formed;
  • failing to comply with a consumer’s request to leave the consumer’s residence or not return (except in circumstances and to the extent justified or permitted by or under the law in order to enforce a contractual obligation);
  • persistently failing to comply with a consumer’s request to cease communicating or initiating unwanted or unsolicited contact with, or making or sending unwanted or unsolicited representations to the consumer by telephone, fax, email or any other electronic means or remote media (except in circumstances and to the extent justified or permitted by or under law, in order to enforce a contractual obligation);
  • In relation to a consumer’s claim on an insurance policy, doing either or both of requiring the consumer to produce documents irrelevant to the validity of the claim or persistently failing to respond to the consumer’s correspondence on the matter, in order to dissuade the consumer from exercising contractual rights in relation to the claim;
  • including in an advertisement, a direct exhortation to children to purchase a product, or to persuade a parent or adult to purchase the product for them;
  • in relation to any product that a consumer does not solicit, demanding that the consumer make immediate or deferred payment for the product, or return or keep the product safe;
  • explicitly informing a consumer that if the consumer does not purchase a product, the trader’s job or livelihood will be in jeopardy.

Prohibited Representations

Traders must not make the following representations;

  • a representation that the trader has an approval, authorisation or endorsement that the trader does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement;
  • a representation that the trader is a signatory to a code of practice, if the trader is not;
  • a representation that the trader is about to cease trading or move premises if the trader is not;
  • a representation that a product has an approval, authorisation or endorsement that it does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement;
  • a representation that a product is able to facilitate winning in games of chance;
  • a representation that the supply of a product is legal, if it is not, or creating such an impression;
  • a representation that a product is able to cure an illness, dysfunction or malformation, if it cannot;
  • a representation that describes a product as “gratis”, “free”, “without charge” or anything similar, if the consumer has to pay anything other than the necessary and reasonable cost of responding to the representation, and collecting the product or having it delivered;
  • a representation that a commercial practice of the trader has an approval, authorisation or endorsement that it does not have, or making such a representation when the trader is not in compliance with the approval, authorisation or endorsement;
  • a representation that a code of practice has an approval or other endorsement that it does not have;

Specific Prohibited Commercial Practices I

Traders must not engage in the following prohibited practices;

  • displaying a quality, standard or trust mark or symbol, or some equivalent type of mark or symbol, without having obtained any necessary authorisation to do so;
  • making an invitation to purchase a product without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising);
  • making an invitation to purchase a product, then demonstrating a defective sample of the product, or refusing to show or display the product to the consumer, take an order from the consumer for the product, or deliver the product to the consumer within a reasonable period of time, with the intention of promoting a different product (bait and switch);
  • making a false representation that a product is available only for a limited time, or on particular terms for a limited time, in order to elicit an immediate decision from a consumer, depriving the consumer of sufficient opportunity or time to make an informed choice in relation to the trader’s product;
  • providing after-supply service to a consumer in a language that is not an official language of the relevant State in which the trader is located, nor is it the language in which the trader and consumer communicated prior to the agreement to supply (subject as below);
  • making a representation or creating an impression that a right given to consumers under an enactment is a distinctive feature of the trader’s promotion or supply;
  • using editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion, whether in the content itself or in any oral, written, visual or descriptive representation in the promotion.

Specific Prohibited Commercial Practice II

Traders must not engage in the following prohibited practices;

  • making a representation to a consumer that is materially inaccurate in respect of the nature and extent of the risk to the consumer’s personal security, or that of other members of the consumer’s household, if the consumer does not purchase the trader’s product;
  • promoting a product (similar to that of another manufacturer) in such a manner as to deliberately mislead or deceive a consumer into thinking that the product is manufactured by that manufacturer when it is not;
  • making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product on conditions less favourable than normal market conditions;
  • operating, running or promoting a competition or prize promotion without awarding the prizes described or reasonable equivalents;
  • making a representation or creating an impression that a consumer has won or will win a prize or other equivalent benefit if there is no prize or equivalent benefit, or in claiming the prize, the consumer has to make a payment or incur a loss;
  • including in marketing material an invoice or any similar document seeking payment from a consumer for a product that the consumer has not ordered;
  • making a representation or creating an impression that the trader is not acting for purposes related to the trader’s trade, business or profession, when the trader is so acting or is acting as a consumer when the trader is not.

Penalties

A person is liable on his first summary conviction, to a fine up to €4,000 and imprisonment up to six months or both. This increases on a second summary conviction to a fine up to €5,000 or up to 12 months imprisonment, or both. If, after being convicted, the trader continues to breach the requirement for which he was convicted, he is guilty of a further offence for each day that the contravention continues and is liable on summary conviction to a fine for each such separate offence of €500 per day.

A person guilty of an offence on first conviction on indictment is liable to a fine up to €60,000 or 18 months imprisonment or both. He is liable on second conviction and further convictions on indictment to a fine up to €100,000 or imprisonment up to 24 months or both.

If having been convicted, a trader continues to contravene the requirement, he may be guilty of a further offence and is liable to a fine of up to €500 per day on summary conviction or to up to €10,000 per day on conviction on indictment.


Compliance Notices

The Commission may serve a compliance notice on a trader where its officers are of the view that the trader is committing or has committed an unfair, misleading or aggressive commercial practice.   The notice is to set out the alleged breach or contravention and must give a direction to remedy the breach within a period specified.

An appeal may be taken to the District Court against a compliance notice.  Where it is not appealed, it is deemed accepted and the trader is deemed to have agreed to comply with the compliance notice.

If it is appealed to the District Court, the Court may confirm, vary or cancel the notice, if it is satisfied that it is reasonable to do so. Non-compliance with a notice or direction is an offence and is subject on summary conviction, to the fines and penalties specified above.


Pyramid Schemes

Pyramid selling was prohibited by legislation in 1980. Pyramid selling involves establishing, operating or promoting a pyramid promotional scheme, whereby a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other persons into the scheme, rather than from the sale or consumption of products.

The Consumer Protection Act defines a pyramid promotional scheme as a scheme by which a person gives consideration in money or money’s worth or gives a gift in money or money’s worth, for the opportunity to receive compensation derived primarily from the introduction of other persons into the scheme, rather than from the supply or consumption of a product.


Pyramid Schemes Offences

A person who promotes, knowingly participates or encourages another to participate in a pyramid promotional scheme is guilty of an offence. For the purpose of the offence, it is not necessary to prove that

  • the opportunity to receive compensation was a legally enforceable right;
  • that the consideration or gift given, was given within the State;
  • that giving consideration or a gift was the only requirement that the person had to satisfy in order to participate or be eligible to participate in the scheme,
  • that any compensation was received within the State,
  • that any opportunity to receive compensation was to be a receipt of such compensation under the scheme, or
  • that any arrangements under the scheme were in writing.

In proceedings for an offence under the legislation or a for prohibition order aimed against the practice, if the alleged pyramid promotional scheme involves the supply of a product, then the following may be considered in determining whether the opportunity to receive consideration is derived primarily from the introduction of other persons into the scheme:

  • in relation to promotion, the emphasis given to the participant’s entitlement to the product, as compared to the emphasis given to compensation derived from the introduction of others into the scheme;
  • the extent to which the consideration given bears a reasonable relationship to the product, by reference to the price of the same or of a comparable product available elsewhere.

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