New unfair trading regulations aim to harmonise the existing law by repealing “old” unfair trading legislation. James Baker bids farewell to the laws that will meet their maker on 26th May 2008 and asks if we will rue the passing of the Fraudulent Mediums Act 1951.
Topic: Consumer Protection
Who: H.M. Govt
When: May 2008
Law stated as at: 30 April 2008
Regular readers of www.marketinglaw.co.uk will be aware that the Consumer Protection from Unfair Trading Regulations 2008 (CPUT) are expected to come into force on the 26th May 2008.
These regulations are derived from the Unfair Commercial Practices Directive (UCPD), and is designated a maximum harmonisation directive and therefore this does not permit Member States to maintain national provisions falling within its scope (unfair commercial practices harming consumers' economic interests) which exceed the provisions of the UCPD (with some exceptions).
This has meant that to implement CPUT the government have had to identify all legislation falling within the UCPD and to either amend the legislation to make it consistent with the UCPD or repeal it. Schedule 2 of CPUT shows how much legislation needs to be amended. The CPUT is repealing in its entirety four acts of parliament, repealing sections of another 36 acts of parliament, repealing in its entirety six statutory instruments and repealing sections of another thirty statutory instruments. This clearly shows the proposed scope of the CPUT legislation.
Wide ranging repeals
This implementation of CPUT has meant that large sections of very wide ranging acts such as the Trade Descriptions Act 1968 and the Consumer Protection Act 1987 have been repealed. Regulations also affected include the revocation of all of the Control of Misleading Advertising Regulations 1988, and its 2000 and 2003 amendments. Also large sections of the Consumer Protection (Distance Selling) Regulations 2000 and Consumer Credit (Advertisements) Regulations 2004 are being revoked.
The need to avoid having national provisions falling within the scope of CPUT has meant that legislation that is regarded as more onerous as CPUT has to be 'weakened' so that it is in line with CPUT. The preferred method of 'weakening' existing legislation has been to repeal it and let the CPUT provision take over. For example the following Acts or parts of Acts have been repealed to make them compatible with CPUT.
- The Trade Description Act 1968 s12 makes it a criminal offence to indicate that you supply goods and services to the royal family when you don't. This will be repealed by CPUT, so that only it will only be an offence if the claim you supply to the Royal Family would be regarded as unfair trading.
- The Trading Representations (Disabled Persons) Act 1958 made it an offence to state that your goods were made by disabled people when they were not. Again this will be repealed and only the unfair trading provisions will apply.
- The Anglo-Portuguese Commercial Treaty Act 1914 made it an offence to mislabel Madeira. Again this will be repealed and again only the unfair trading provisions will apply.
- The repeal of the Fraudulent Mediums Act 1951 in some ways has the biggest effect, as this legislation has worked the opposite way of most unfair trading legislation. The legislation protects the seller, rather than the buyer. This act states that it is necessary to show fraud before the actions of a medium would be regarded as deceit. Unless you are a believer in the 'other side', it has meant that lying to your customer is ok. However with the coming introduction of CPUT, this act will be repealed and now mediums will be under the same statutory duty to be truthful to the customer as any other seller of goods and services.
Why this matters:
In considering the effect of the large number of repeals and revocations to the CPUT regulations, it has had the effect of creating a form of 'one stop shop'. In other words, we will arrive at a position come 26th May 2008 where to determine what will be regarded as "unfair" advertising that might give rise to a criminal prosecution, the CPUT Regulations will be very much the first port of call.
Amongst those who will find this form of codification awkward will be 'spiritual mediums' who will now be obliged not to mislead, coerce or take advantage of any 'vulnerable' consumers in exactly the same way as a double-glazing salesman. Of course as they can see the future, they should still have no trouble avoiding the diligent trading standard officer!