Who is the Average Consumer in Braintree?

The average consumer in Braintree and throughout the UK is a concept that is key to determining whether practices on the part of a given business will actually be found to be unfair is the ‘average consumer’ concept. This is the benchmark that dominates the test: a practices is only misleading if it is false or likely to deceive the ‘average consumer’ so they make a transactional decision they would not otherwise take. However, although the ‘average consumer’ is deemed to be someone who is reasonably well-informed and reasonably observant and circumspect, the difficulty (from a consumer protection point of view) is the concern that the average consumer notion sets too low a level of protection.

Essentially, the focus is on the idea that the ‘reasonably well informed and reasonably observant and circumspect’ notion is simply based on unrealistically high expectations of the information processing capabilities of consumers and so ends up setting a low standard of protection. This is considered to be a concern that is all the greater when it finds its way into a maximum Directive such as European Directive 2005/29 that sets the ceiling of protection for Member States of the European Union to apply. However, it may not be that the ‘average consumer’ concept poses as much of a threat to levels of protection as might first be feared. By way of illustration, the case law to have developed in this area has arisen in the context of cases on free movement where it has been alleged that national measures hinder this free movement; the issue, then, being whether there is a consumer protection justification for the measure in question.

Let us carry this argument forward. It seems that a particularly notable feature of many of the cases-and a reason that the risk of the average consumer being misled was indeed small is that they have involved core elements of the proposed transaction. These are the elements of the transaction that consumers are used to confronting and filtering all the time-the strength of an alcoholic drink, the basic nature of a product such as margarine or a cosmetic; the size of a relatively uncomplicated product such as a Mars Bar. Therefore, is it really likely that the average consumer is unable to understand that one type of alcohol is weaker than others; that margarine is margarine even although it is not sold in the traditional cube shaped packets; that cosmetics do not have medicinal properties simply because they are sold under the name ‘clinique’; or that that where there was a marking on a mars bar indicating a 10% increase in size from previously that there was only indeed such a 10% increase in size, despite the actual size of the marking taking up more than 10% of the size of the bar?

The implication of looking at things in this way seems to be that the average consumer could quite readily be misled by many of the practices outlined above. This may well be the case where we are concerned with pre-contractual statements that are not about the basic features of products and services, but rather about matters that are either less likely to be given a great deal of attention and/or about which the consumer might find it more difficult to make a rational judgement (e.g. as to the fitness or qualities of the goods or service; benefits and risks; sponsorship, trader obligations etc). Equally, it may be the case in relation to post-contractual statements as to the need for a service or replacement or as to the rights of either of the parties. Indeed, not only is the consumer more vulnerable to such statements because they do not go to core issues that he is used to processing and getting to grips with; but he is more vulnerable because of another element of the context. At the stage where traders assert a need for service, repair etc, the consumer is concerned that his earlier investment in the goods or services may be at risk if they do not listen to the trader. Also, in particular where the trader is asserting certain rights against the consumer the latter is vulnerable due to anxiety about losing the service, being sued, possibly suffering a negative credit rating etc.

In conclusion, then, it may be that the average consumer benchmark does not end up limiting the level of protection under the concept of misleading practice. However, it is very difficult to predict exactly what approach will be taken to the concept by the courts domestically or in Europe. Instead, what often ends up being most important is the way a concept like this is interpreted by the key enforcement bodies like the Office of Fair Trading  and local authority trading standards authorities. Nonetheless, although such interpretations can ultimately be challenged in the courts, this will only happen in a very small minority of cases.