391

9â Offences

classed as an unfair commercial practice is where the trader expressly informs a

consumer that if he does not buy the product or service in question, the trader’s

job or livelihood will be in jeopardy. Such a statement is a straight-forward and

blatant attempt to pressurise the consumer and thereby to remove his ability

to make an objective and independent decision about whether to purchase the

relevant product.

(t)â False statements about prizes

The last of the thirty-one practices listed in Schedule 1 which will always be

classed as an unfair commercial practice relates to statements made to a con-

sumer that they have won or will win a prize or other benefit. It encompasses

creating a false impression that a consumer either has won, will win or, on the

doing of a specified act will win, a prize or other benefit, when the truth is either

that the prize or benefit does not exist or that claiming the prize or other benefit

requires the consumer to pay some money or incur a cost. The OFT Guidance

gives an example of a trader sending out letters to consumers which are headed

‘You have won our top prize of £3,000’ when the back of the letter states in small

letters that the consumer must buy a product before being entered into a draw

for the money.157

All of the thirty-one practices listed in Schedule 1 have a common feature

in that they attempt to take advantage of the consumer and use unfair, fraudu-

lent and aggressive methods to try and influence any transactional decision that

the consumer may make to the benefit of the trader. The Schedule evidences

the intention of the law to step in to protect the consumer from such practices.

Enforcement of the provisions of the Schedule is the responsibility of the rele-

vant enforcement authority.

Q16 Analyse the ambit of the unfair commercial practices listed in Schedule 1

paragraphs 21–31(section 8(l)–(t) above).

9â Offences

Regulations 8 to 12 of the CPUT Regulations 2008 create criminal law offences.

Regulation 8 makes it an offence to breach the regulation 3 prohibition against

unfair commercial practices, while regulations 9 to 12 deal with the strict liabil-

ity offences for breaches of regulations 5 to 7 and for the unfair commercial

practices listed in Schedule 1.158

The criminal offence under regulation 8 requires proof of mens rea, the

offence being to ‘knowingly or recklessly engage in a commercial practice’

157

See OFT Guidance, above n. 8, para. 6.1.

158

A breach of any of the practices listed in Sch.1 is a strict liability criminal offence, with the

exception of breaches of paras. 11 and 28, which deal with advertorials and exhortations

directed to children, respectively, and which are enforceable through civil law enforcement only.

Contents

1â

Introduction

393

2â

Background

394

3â Controls over misleading advertising

394

4â

Comparative advertising

399

5â Promotion of misleading and comparative advertising

402

6â

Recommended reading

403