Once on marketinglaw we mourned their passing, but now ‘Stop Now orders,’ or ‘Snores’ for short appear to be back with a bang by way of the appointment of the Consumer’s Association as a “Dedicated enforcer’ under the Enterprise Act 2002. What are we on about?
Topic: Misleading advertising
Who: Consumer Minister Gerry Sutcliffe and the Consumers' Association
When: April 2005
It was announced that the Consumers' Association was to become a "Designated enforcer" under the Enterprise Act 2002 and this came about with effect from 22 April 2005 by way of the Enterprise Act 2002 (part 8) (Designation of the Consumers' Association) Order 2005.
The effect of this is that the Consumers' Association, like for example the Financial Services Authority, now has the power to take enforcement action against all those, including advertisers, which it perceives to be operating in a manner breaching consumer protection legislation.
Cited examples of such legislation include the Control of Misleading Advertisements Regulations, which extend to comparative advertising. Another example is the Unfair Terms in Consumer Contract Regulations 1999. In both these areas, the principal body which up until now has been taking enforcement action by direct application to the court has been the Office of Fair Trading.
Now the Consumers' Association will be able to seek assurances from traders who it believes infringe legislation of this kind and, if it fails to receive such assurances, to apply to the court for enforcement orders. If those orders are ignored by a trader, the trader faces a fine and or imprisonment for contempt of court.
Why this matters:
The resources of the Office of Fair Trading are already desperately stretched and it will hopefully welcome the arrival of a companion in arms who has similar power to take action against miscreant advertisers.
Up until now, the OFT's limited resources have meant that cases where applications have been made to the court for enforcement orders under, for instance misleading advertising regulations, have been few and far between. Whether we will see an exponential increase in action of this kind or at least more threats that such action will be taken, will remain to be seen.
In the meantime, announcements of this development also feature one other interesting aspect. This appears to be the revival of the phrase "Stop now order" to describe enforcement orders of the kind envisaged by the Enterprise Act 2002. Up until the coming into force of the Enterprise Act 2002, the phrase used to describe orders obtained from the court under the relevant consumer protection legislation was a "Stop now order" or "SNORE".
Disappointingly, the Enterprise Act 2002 appeared to rename such orders uninspiringly "Enforcement Orders", and in marketinglaw.co.uk for example we bemoaned the passing of what we felt was a much more appropriate and characterful title. Now, after 3 years, it appears that our pleas have been heard and the official pronouncements about the Consumers' Association's new powers have specifically referred to "Stop now orders".
So it is welcome back to the SNORE and hopefully farewell to the "EO".