The Consumer Protection from Unfair Trading Regulations 2008

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The Consumer Protection from Unfair Trading Regulations 2008

This advice has been prepared on the basis of information in:-

The Consumer Protection from Unfair Trading Regulations 2008 No.



The Consumer Protection from Unfair Trading Regulations 2008

Have you been treated unfairly by a business or a trader?

New rules introduced in May 2008 create general duties upon traders to act fairly and also identify 31 specific commercial practices as automatically unfair and therefore unlawful.

The new Consumer Protection from Unfair Trading Regulations 2008 (CPUT) create a general duty not to trade unfairly and also prohibit misleading and aggressive practices.

Unfortunately the CPUT regs have to be enforced directly by the OFT which means that the aggrieved consumer has to write a letter of complaint.

On the other hand, the OFT is obliged to follow up any complaint. The consumer does not need actually to have contracted with the trader. The complaint can be about unfair trading can be made any time during the transaction - before, during or after a contract is made and in fact there is no need to have contracted at all.

Furthermore, where a consumer has been induced to enter into a contract as a result of some unfair practice, then it seems to me that there is a basis to bring an action on a breach of contract on the grounds that all contracts must be conducted lawfully.

It seems to me that the general duty of fair dealing and also the prohibition on misleading or aggressive practices could be very useful as they are widely drafted. In particular it might be able to use them to combat some unfair aspects of debt collection practice.

General Duty of Fair Trading

This is pretty wide and would be too complicated to try and give a full explanation.

However the test is roughly:-

whether the trader has somehow acted unprofessionally or not in good faith, and whether this behaviour has had a negative effect on the consumer

“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either—

(a) honest market practice in the trader’s field of activity, or

(b) the general principle of good faith in the trader’s field of activity;

3.—(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

(3) A commercial practice is unfair if—

(a) it contravenes the requirements of professional diligence; and

(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.

(4) A commercial practice is unfair if—

(a) it is a misleading action under the provisions of regulation 5;

(b) it is a misleading omission under the provisions of regulation 6;

(c) it is aggressive under the provisions of regulation 7; or

(d) it is listed in Schedule 1.

Aggressive and misleading practices

It seems to me that a debt collection agency which threatens legal action over debts which are more than 6 years old and which are therefore statute barred are probably acting unfairly

They are probably not acting in good faith as they are making unenforceable threats of legal action.

3(3)(a) Their threats are likely to affect consumer behaviour. 3(3)(b) and reg.5(b) below

Furthermore their threats would be misleading 3(4)(a) and reg.5(2) below

This kind of debt collection behaviour may even be an aggressive practice under reg.7.

Plenty to choose from. Of course none of this is completely certain until the reaction to complaints is received or court actions are taken.

Misleading actions

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(2) A commercial practice satisfies the conditions of this paragraph—

(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(3) A commercial practice satisfies the conditions of this paragraph if—

(a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or

(b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and

(ii) the commitment is firm and capable of being verified and is not aspirational,

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

Misleading omissions

6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

Aggressive commercial practices

7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—

(a) it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and

(b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

(2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of—

(a) its timing, location, nature or persistence;

(b) the use of threatening or abusive language or behaviour;

(c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which the trader is aware, to influence the consumer’s decision with regard to the product;

(d) any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and

(e) any threat to take any action which cannot legally be taken.

(3) In this regulation—

(a) “coercion” includes the use of physical force; and

(b) “undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.

Faking Credentials

Claiming to be a signatory to a code of conduct when the trader is not.

Have you ever decided to get in a plumber, or builder or architect etc? If they tell you that they are signatories to a code of conduct but turn out not to be, they are acting unfairly. Whether you have already entered into an agreement with them or not, and even if you only find out afterwards, you can complain to the OFT in the first instance. If you have entered into an agreement with them you could even sue them for breach of contract if you have suffered in some way - such as paying over the odds for a professional firm.

False Standards Claims

Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.

Have you bought products or services on the basis of a quality mark which you noticed and trusted? If that quality mark turns out not to have been authorised then trader is acting unfairly and you can complain to the OFT even if you haven yet bought the item yet. If you have actually bought it then you may be able to sue in breach of contract.

False Code of Conduct

Claiming that a code of conduct has an endorsement from a public or other body which it does not have.

If you are considering dealing with a trader - or you are dealing with him and you discover that the code of conduct which he is party to is not as good as he says it is then your trader is operating an unfair practice and you can complain. If you have actually started dealing with the trader then you may also be able to sue for a breach of contract.

False Endorsements

Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when the trader, the commercial practices or the product have not or making such a claim without complying with the terms of the approval, endorsement or authorisation.

I stayed at a hotel once which had a big AA 2 star sign outside it. The standard was so poor that I complained to the AA. They told me that the hotel was not approved by the AA. It was an old sign used by the previous management. I argued that they had a responsibility to keep track of their old signs and to take them back when a hotel lost its rating. They paid me an ex Gratia sum in compensation.

Now you could also complain to the OFT

Special offer - out of stock

Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply, or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

How many of us have signed up to buy goods - on the internet, for instance - and ended up waiting an awful long time as you are notified of a series of delays. Now it is clear that this is an unfair practice and you can complain.

Bait and Switch

Making an invitation to purchase products at a specified price and then— (a) refusing to show the advertised item to consumers, (b) refusing to take orders for it or deliver it within a reasonable time, or (c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch).

Very similar to bait selling. It's unfair. Complain.

If you have parted with your money then you can sue.

What can you sue for? Well you might like to know that you can force the bait-seller to pay you enough to pay for the equivalent item elsewhere - even if it is more expensive.

False Sales

Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.

Have you seen any local shops which seem to display permanent signs claiming that they only have a few stock items left? If it's untrue then its unfair

Hidden language terms

Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the EEA State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.

I'd be interested to know if anyone has ever come across this behavior before.

I wonder if it is connected to the sale of Grey-Market goods?

Anyway, if it happens then it is unfair

Illegal products

Stating or otherwise creating the impression that a product can legally be sold when it cannot.

This doesn't only apply to illegal items, I fully expect that this also applies to items which it is unlawful to sell in certain circumstances. For instance a trader may give the impression that it is lawful to sell cigarettes or alcohol to people who aren't old enough to buy them - maybe to bring them into their pub or shop.

This would be unfair and should be reported.

Duplicate rights

Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.

Is the trader trying to sell you rights which you have already - although maybe you didn't realise it?

Extended warranties spring to my mind. People pay out big money on extended warranties in order to insure against breakdown of their TVs, computers etc in the first 3 or 5 years of ownership. Most people don't seem to appreciate that they are pretty well covered by their existing rights under the sales of Goods Act. Are extended warranties unfair? I think so - but others would disagree and it needs some debate a few county court claims to find out.

Covert advertising

Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).

If you know that the trader has paid for the newspapaer to print his claims - that's one ting. If the advertisement is disguised as an impartial news item, then that's unfair.

Scare tactics

Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.

Have you ever been frightened into making a purchase?

False product identity

Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.

Lots of supermarkets carry their own brands in similar containers to the known brands and standing right next to them on the shelves.

This might be unfair. Have you ever picked up one in mistake for the other? You might have cause for complaint.

Pyramid selling

Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.

This has become especially big since the introduction email - but it has existed for a long time before that

Closing down sales

Claiming that the trader is about to cease trading or move premises when he is not.

Haven't we all seen those closing down signs-

"Everything must go!"

Gambling aids

Claiming that products are able to facilitate winning in games of chance.

Quack medicine

Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

Claims for medicines are pretty tightly regulated in UK but I suppose that this still goes on. Maybe a sales person makes the claims to you verbally.

In France there is very little regulation. They make all sorts of absurd claims on French TV and the French viewing public swallow it all (either end )- hook, line and sinker - (3 times a day before meals! )

False market information

Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.

False competitions

Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent. I get heaps of junk mail telling me that I have won a prize and to make contact. I always bin them - but maybe you don't. Have you had experience of this kind of unfair practice? If you don't complain about it, it will just go on- and on - and on - an on ....

False free gifts

Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

One test of this is if you decide to return the goods which you paid for. Do they also require you to return the accompanying free gift? If they do then the gift probably isn't free and they are acting unfairly.

False invoicing

Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.

Covert trading

Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.

"private seller"???

Maybe it is a trader acting unfairly.

After sales service

Creating the false impression that after-sales service in relation to a product is available in an EEA State other than the one in which the product is sold.

You buy an item so that you can use it in your second home in Benidorm. The seller tells you that there is no problem as the guarantee is valid there.

If he is telling porkies, then he is acting unfairly. Complain.


Creating the impression that the consumer cannot leave the premises until a contract is formed.

I'd like to hear from anyone who has experienced this please.

Cold calling at home

Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return, except in circumstances and to the extent justified to enforce a contractual obligation.

If you expereince this, yo shojld make a log of the visit and exactly what was said. You must complain about this. This kind of treatment may be experienced by elderly or otherwise vulnerable people who may not know that they can complain.

Cold calling - phone

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.

Make a log of the call or better still record it and then complain.

Obtructing insurance claims

Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.

We hear about lots of this.

Sue the insurers and also complain.

We will help you.

Advertising to children

Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.

You can either teach your children not to be phased by marketing and advertising - or you can complain that the trader is acting unfairly.

I would suggest that you do both.

Unsolicited goods

Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer, except where the product is a substitute supplied in accordance with regulation 19(7) of the Consumer Protection (Distance Selling) Regulations 2000 (inertia selling)

This is old law but in a new guise.

Unsolicited goods

Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer, except where the product is a substitute supplied in accordance with regulation 19(7) of the Consumer Protection (Distance Selling) Regulations 2000 (inertia selling)

This is old law but in a new guise.

False competition prizes

Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either— (a) there is no prize or other equivalent benefit, or (b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.]

I never fall for this kind of thing because I never win anything.

But if someone tried it on me, I would complain

Complaint to the OFT in respect of invalid CCA agreement - draft

If you think that your DCA is acting contrary to any part of these regs then complain immediately.

Post in the debt forum to let us know what you are doing.

There is no cost and no risk to this course of action.

This has not been tried before but CPUT is very new.

This action should be taken in addition to any other action you are considering taking.

Do not neglect any court action merely because you have made a complaint to the OFT. On the other hand, once you have received an acknowledgment and a complaint reference number, you can refer to it in court so that the judge knows what is going on.

Your address


Dear Sir/Madam

Consumer Protection from Unfair Trading Regulations 2008 (CPUT)

Formal complaint against [Name of Debt Collection Agency here]

I am writing to complain under the above CPUT regulations. I am receiving letters and telephone calls from [DCA] in respect a purported debt which I understand is governed by the Consumer Credit Act 1974.

In accordance with the Consumer Credit Act I asked [DCA] to supply me with a true copy of the Consumer Credit agreement. [They have failed to do so/ supplied me with a document which clearly fails to satsify the Consumer Credit Act.] I enclose a copy of that document with this letter.

Although I have pointed this out to [DCA] they have failed to acknowledge this and continue to contact me and to harrass me with threats of action.

Clearly they are entitled to bring a legal action if they so wish. However, they have not done so and appear instead to be relying upon a campaign of systematic contact with accompanied by threats.

I consider that [DCA] are operating an unfair commercial practice and it is for this reason that I am sending you this complaint.

I enclose examples of the letters which they have been sending to me. I also enclose a log and verbatim notes of phone calls I have received.

I would be grateful if you would acknowledge this letter and let me know what procedures you now intend to follow and what your targets for action are.

Yours faithfully

sign the letter

Delete or include the appropriate words for the words in red in this template

See here for template complaint letters:

The Consumer Prtection from Unfair Trading Regulations: Complaint Template Letters