402 Chapter 15Regulation of business by the criminal law
any right of action nor do they invalidate any contract which a consumer might have made.
Second, the regulations do not cover unfair business-to-business commercial practices.
However, this second matter is dealt with because the Misleading Marketing Regulations
2008 impose criminal liability in relation to unfair business-to-business advertising.The structure of the Regulations
The Regulations are set out in four parts. Part 1 deals with definitions within the Regula-
tions. Part 2 describes the acts and omissions which the Regulations prohibit. Part 3 sets out
the criminal offences which the Regulations create, as well as the defences available. Part 4
deals with enforcement.The prohibitions under the Regulations
Regulation 3(1) states that unfair commercial practices are prohibited. Regulations 3(3) and
3(4) then describe what is meant by an unfair commercial practice. Regulation 3(3) sets out
a general definition of an unfair commercial practice, whereas Regulation 3(4) deals with
four, more specific, types of unfair commercial practices.The reg. 3(3) definition of unfair commercial practices
Regulation 3(3) states that:
A ‘commercial practice’ is defined by reg. 2(1) as any act, omission, course of conduct, rep-
resentation or commercial communication (including advertising or marketing) by a trader,
which is directly connected with the promotion, sale or supply of a product to or from con-
sumers, whether occurring before, during or after a commercial transaction (any) in relation
to a product.
This definition makes it plain that a commercial practice can have occurred even if no
commercial transaction has occurred. So if a manufacturer advertised his product to con-
sumers, this would be a commercial practice even if no consumers bought the product or
entered into any other commercial transaction. However, as noted above, if one trader
merely misdescribed a product to another trader, there would have been no commercial
practice. Nor can a commercial practice be engaged in by a consumer. Only a trader can
engage in a commercial practice. The width of the definition of a commercial practice is
also noteworthy. ‘Any act, omission, course of conduct, representation or commercial com-
munication’ would encompass just about anything done or not done by a trader. However,
the thing done or not done would have to be ‘directly connected with the promotion, sale
or supply of a product’ to or from a consumer. Even the provision of an after-sales service
or the collection of a debt would be included. It is plainly the case that a commercial prac-
tice could be committed by a trader who buys from a consumer.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.Professional diligence is defined as:
the standard of special skill and care which a trader may reasonably be expected to exercise
towards consumers which is commensurate with either –