Sellers beware - The hard sell could soon become criminal

The most comprehensive overhaul of consumer protection law for nearly 40 years is imminent and you need to be prepared.

The Consumer Protection from Unfair Trading Regulations 2008 ("the CPRs") are due to come into effect on 26 May, repealing laws such as the Trade Descriptions Act and replacing them with a unified framework based on the Unfair Commercial Practices Directive.

Existing provisions on the quality and safety of goods and services remain unaffected but what has changed is the law's attitude to misleading, unfair and for the first time aggressive trading practices.

In short the "hard sell" could soon become a criminal offence. 

To whom do the CPRs apply?
All business sectors (which includes a trade, craft or profession) dealing with consumers - so builders, bars, restaurants, estate agents, garages and even solicitors will be covered. All commercial practices directly connected with the promotion, sale or supply of a product to a consumer before, during and after a commercial transaction are included. A "product" is defined as any "goods or service". Buying a DVD will be covered, as will the services involved in buying a house.

Who and what are not covered?
Business-to-business transactions are covered by separate legislation. Consumer-to-consumer transactions are also excluded.  Issues relating to the quality of goods or standards of service are covered under a separate consumer protection regime which is unaffected by the CPRs.

So, a builder providing roofing services to an individual will be covered by the CPRs. However, a builder providing similar services to a firm of solicitors will not. If the work proves ultimately defective, then remedies are available under existing legislation.

In a nutshell, what practices are prohibited?

1. Misleading actions or omissions (regulations 5 and 6) are prohibited. These include:

- Giving false information about a product.

- Creating confusion with a competitor's product.

- Failing to comply with a Code of Practice.

- Omitting, hiding or generally being unclear about material information which a consumer needs to make an informed decision about a product.

- "Invitations to purchase" (i.e. adverts giving a price) must ordinarily include information such as the main product characteristics, name and address of the trader and postage costs.

2. Aggressive sales techniques (regulation 7) are prohibited. Such practices include harassment, coercion and exerting undue influence. For example, if a consumer takes their car for an oil change, but the garage overhauls the engine and refuses to release the car until full payment is made, this would be considered "undue influence".

3. A trader who knowingly or recklessly falls below professional standards which he can reasonably be expected to exercise and that conduct (may) materially affect a consumer's behaviour will  breach the CPRs (regulation 3). This is intended to be a "catch all" provision.

The above three practices will be unfair if they cause or are likely to cause a consumer to make a different decision than he otherwise would have. For example, if a consumer buys a product that they would not normally have bought because of misleading information, that practice will be unfair.

4. There are also 31 specified practices which will always be unfair whether the economic interests of the consumer are harmed or not (Schedule 1).

Particularly bad practices may contravene more than one prohibition.