Misleading consumers in Chelmsford or anywhere else in the UK is unwise if you are running your own business and want to grow within a given industry. However, whilst you may be willing to do anything to achieve this, there are limitations on what you are able to do. By way of illustration, you MUST NOT, under any circumstances, mislead consumers about your products and/or services or else risk being sanctioned to the detriment of your business whether it is through a ‘misleading practice’ or a ‘misleading omission’.
A commercial practice is recognised as a ‘misleading action’ under Regulation 5(2) of the Consumer Protection from Unfair Trading Regulations 2008 where –
“it contains false information and is therefore untruthful … or if it or its overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct; and .. it causes or is likely to cause him to take a transactional decision that he would not have take otherwise”
The information that may be deemed to be misleading could be taken to relate to a broad variety of matters to catch the vast majority of information that one can imagine being relevant in relation to the existence and basic nature of a given business’ product or service which includes its – (a) history; (b) composition; (c) quantity; (d) fitness; (e) performance; (f) benefits; (g) risks; (h) availability; (i) delivery; (j) sponsorship; (k) approval of the product or service; (l) the motives for the practice and the nature of the sales process; (m) the price; (n) the need for a service; (o) replacement or repair; (p) trader obligations in general and in relation to after sales service and complaint handling; (q) the nature, attributes and rights of the trader or their agent; and (r) the rights of the consumer.
Therefore, the understanding of a ‘misleading action’ under the Consumer Protection from Unfair Trading Regulations 2008 could be broadly said to cover all pre-contractual advertising and sales promotion statements that would have been covered by the private law of misrepresentation, the Trade Descriptions Act and/or the Control of Misleading Advertisements Regulations. At the same time, however, it should still be recognised that it is not enough for the information in a given case to be untruthful, deceptive, or likely to deceive the average consumer.
The reality is that you will only really have a problem as a business owner if it can be shown that the information you provide to consumers in relation to your products and/or services must also cause (or be likely to cause) them to take ‘transactional decisions’ they would not otherwise take.
Under Regulation 2(1) of the Consumer Protection from Unfair Trading Regulations 2008, a ‘transactional decision’ is –
“any decision taken by a consumer, whether it is to act or to refrain from acting, concerning – (a) whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or(b) whether, how and on what terms to exercise a contractual right in relation to a product.”
The recognition of a ‘transactional decision’ is a bit like the offence of misrepresentation whereby a statement made by your business induces consumers to enter a contract. However, there are some key differences between the two because it needs only be ‘likely’ to affect consumer behaviour and even the ‘likely’ result need not be entry into a contract – a ‘transactional decision’ is deemed to be enough.
Therefore, so long as the information/statement that you provide to consumers is ‘material’ (i.e. reasonably important) to the particular product/service provided then it will be presumed that it would be likely to cause a consumer to then make a transactional decision which could even lead to criminal sanctions under Regulations 9-12 of the Consumer Protection from Unfair Trading Regulations 2008.
Contact Andrew Douglas Wills and Legal Services today via www.andrewdouglaswills.co.uk to see how we could help you to avoid misleading consumers in Chelmsford and throughout Essex.
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