Section 9: Unfair Commercial Practices
1. What is an unfair commercial practice? What can I do in case of unfair practices?
A commercial practice is unfair if: – it is not professionally diligent, and – it materially distorts, or is likely to materially distort, the economic behaviour of the average consumer. For example, because of the practice, the average consumer would buy a product they would not otherwise have bought, or would not exercise cancellation rights when otherwise they would have done so.
There are also 31 practices which are banned outright by legislation including:
Claiming to be a signatory to a code of conduct when the trader is not.
Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when the trader, the commercial practices or the product have not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
Presenting rights given to consumers in law as a distinctive feature of the trader’s offer
Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).
Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
Creating the impression that the consumer cannot leave the premises until a contract is formed.
Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return except in circumstances and to the extent justified to enforce a contractual obligation.
Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified14 to enforce a contractual obligation.
Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy.
If you think you have been mislead contact the Consumer Council [0800 121 6022] or Consumerline [0300 123 6262] for advice and information. You can obtain a guidance booklet by contacting the Office of Fair Trading on 0800 389 3158.
2. What is a misleading selling practice? What can I do in the case of unfair practices?
The Consumer Council has produced a Marketing Code of Conduct for energy suppliers, which has been adopted by all suppliers and an A-Z Consumer advice Handbook. To obtain a copy contact the Consumer Council. If you think you have been misled contact the Consumer Council [0800 121 6022] or Consumerline [0300 123 6262] for advice and information. You can also obtain a guidance booklet by contacting the Office of Fair Trading on 0800 389 3158.
A misleading action occurs when a practice misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the consumer to take a different decision. For instance, if a trader falsely tells a consumer that his boiler cannot be repaired and he will need a new one, he will have committed a misleading action.
There are three types of misleading actions:
- misleading information generally. These are actions that mislead by:
- containing false information OR deceiving or being likely to deceive the average consumer (even if the information they contain is factually correct),
and
- the false information, or deception, relates to one or more pieces of information in a list in the legislation
and
- the consumer takes, or is likely to take, a different decision as a result.
- creating confusion with competitors’ products that is, if they:
- market a product in a way which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor,
and
- the consumer takes, or is likely to take, a different decision as a result
- failing to honour firm and verifiable commitments made in a code of conduct where:
- the trader has undertaken to be bound by a code of conduct (or code of practice), and indicates that he is bound by it in the commercial practice,
and
- the trader fails to comply with a firm and verifiable commitment in that code,
and
- the consumer takes, or is likely to take, a different decision as a result
The Consumer Council has produced a Marketing Code of Conduct for energy suppliers, which has been adopted by all suppliers and an A-Z Consumer advice Handbook. To obtain a copy contact the Consumer Council. If you think you have been misled contact the Consumer Council [0800 121 6022] or Consumerline [0300 123 6262] for advice and information. You can also obtain a guidance booklet by contacting the Office of Fair Trading on 0800 389 3158.
3. Who should I talk to if I think that I have been given false information, before signing the contract? After signing the contract?
If you think you have been mislead contact the Consumer Council [0800 121 6022] or Consumerline [0300 123 6262] for advice and information. You can obtain a guidance booklet by contacting the Office of Fair Trading on 0800 389 3158.
4. Who should I talk to if I think that I have been switched against my will?
Firstly talk to your original supplier. If this does not resolve the problem contact the Consumer Council [0800 121 6022].