Unfair marketing becomes a criminal offence next week

The Consumer Protection from Unfair Trading Regulations 2008 come into force on 26th May 2008. They were passed to protect consumers against unfair, misleading or aggressive marketing practices. In addition to a general prohibition against unfair commercial practices, the Regulations contain a blacklist of 31 practices that will be deemed unfair in all circumstances.

Offences that can be punished by up to two years in prison will include faking credentials, e.g. falsely claiming to be a signatory to a code of conduct or displaying a trust mark without authority; falsely claiming that a product is available for a limited time only; or running a 'closing down sale' when the trader is not closing down.

Spam is also caught by the Regulations, making it a criminal offence for the first time in the UK. The Regulations state that "Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified to enforce a contractual obligation" will be an unfair commercial practice in all circumstances. Again, the maximum penalty is two years in prison.

One of the most controversial items to be included in the blacklist was a restriction on the use of the word 'free'. The Regulations provide that describing a product as 'free' is forbidden where the consumer has to pay "anything other than the unavoidable cost of responding, collecting or paying for delivery of the item."

There were fears that this would prevent 'Buy one get one free' offers – though such concerns appear to be unfounded, after being dismissed by both the UK Government and the European Commission, which wrote the Directive that led to these Regulations.