Consumer Protection

This checklist sets out how a business can comply with its obligations under consumer protection legislation.

Unfair commercial practices

Consumer protection legislation provides a general prohibition on unfair commercial practices.

Misleading acts or omissions

A business must not mislead consumers through acts or omissions. For example:

  • A business falsely tells a consumer their boiler cannot be repaired and they will need a new one. This constitutes a misleading action.
  • A business sells a satellite television package to a consumer, without indicating that sports channels are only available at an additional subscription cost. This constitutes a misleading omission.

Aggressive commercial practices

Businesses must not subject consumers to aggressive commercial practices (for example, bringing a consumer to a holiday club presentation with no means of getting home unless they sign a contract).

Definitively unfair commercial practices

Consumer protection legislation contains a list of 31 commercial practices that are always unfair. These include:

  • Displaying a quality mark without authorisation.
  • Falsely claiming to be a signatory to a code of conduct.
  • Falsely claiming a product is able to cure illnesses.

Who can take action for a breach?

  • A business will commit an offence if it engages in unfair commercial practices.
  • The OFT and the Trading Standards Services can take enforcement action against a business if the business breaches consumer protection legislation.
  • Penalties include:
    • a fine not exceeding the statutory maximum on summary conviction; and
    • a fine of up to two years imprisonment or both on indictment.

Unfair terms in consumer contracts

  • Consumers can challenge contract terms on the basis that they are unfair.
  • Consumer protection legislation applies to any unfair terms in contracts between a consumer and a business selling goods or services.
  • A term will be regarded as unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract in favour of the business.
  • If a term is unfair, then it is not binding on a consumer, although the remainder of the contract will continue in force if it is capable of doing so.
  • When deciding whether a term is unfair, a court will take into account:
    • the type of goods and services being provided;
    • the circumstances surrounding the conclusion of the contract; and
    • all the terms of the contract, or of another contract on which it depends.

Potentially unfair terms in consumer contracts

Consumer protection legislation provides a non-exhaustive list of potentially unfair terms. The types of terms identified are those that, in effect, are trying to achieve the following:

  • Make a consumer pay an unfair penalty.
  • Mislead a consumer about his legal rights, or mislead him about the contract.
  • Deny a consumer full redress.
  • Tie a consumer into a contract unfairly.
  • Allow a business to not perform its obligations.
  • Not allow a consumer to recover his prepayments on cancellation.
  • Allow a business to vary the terms after the contract has been agreed.

More information

If you have any queries about the content of this checklist, please contact Catherine Drew