What does the Unfair Commercial Practices Directive mean for marketing and public relations?


Legal text and glasses

Earlier this year I wrote about a European directive that’s being enacted into UK law by April 2008.

The directive is called the Unfair Commercial Practices Directive and the UK government is currently running two consultations on its implementation in the UK – through the Office of Fair Trading and the Department for Trade and Industry.

To put it very simply, the directive aims to stop businesses treating consumers unfairly. It seems to act as a blanket back-up to many existing laws that protect consumers (such as the Consumer Credit Act, Sale of Goods Act).

Buried deep in one of the consultations (p46) is a list of 31 practices that are deemed unfair. These practices won’t be ones that are practiced by reputable marketing and PR practitioners. They include dodgey things like:

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

Or how about..

Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy.

So nothing for us to worry about there then.

But it’s on p34 of the consultation document where we need to look to find out how the act could affect what we do.

The list of naughty things on p46 isn’t exhaustive. The directive will make it an offence to do anything misleading that causes a consumer to buy something they wouldn’t otherwise have purchased, or in the words of the consultation:

A commercial practice is a misleading action…[and therefore “banned”]…if it causes or is likely to cause the typical 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.

It’ll be an offence to put anything untrue in advertising or promotional material (but then this is covered under various other codes anyway). It’ll also be an offence to present truthful information in a misleading way if it’s deemed likely to deceive a consumer.

Practices such as running fake blogs or a company/agency commenting on blog posts without disclosing their identity would definitely seem to be included in this category.

The consultation also makes it an offence for a company to not comply with a commitment contained in a code of conduct which the trader has undertaken to comply with – which reads to me that if you’re a member of a professional body (eg CIM or CIPR) then the directive puts your compliance with that organisations code of conduct on a legal footing.

From my reading of the consultations, it doesn’t look like there’s anything in there that will cause major problems for reputable marketing and public relations practitioners, although there will definitely be some provisions that they need to be aware of.

I should really add a health warning to this post – I’m not a lawyer and the consultation texts are full of legalese and very complicated clauses. I’ve read them in a fair amount of detail, but that’s not a guarantee that I haven’t missed anything!

I definitely need some fresh air now to wake myself up…

Photo credit: gwilmore on Flickr