business, craft or profession, or falsely representing
oneself as a consumer;
■creating the impression that the consumer cannot
leave the premises until a contract is formed;
■making persistent and unwarranted solicitations by
telephone, fax, e-mail or other remote media except
in circumstances and to the extent justified to enforce
a contractual obligation;
■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;
■explicitly informing a consumer that if he does not
buy the product or service the trader’s job or liveli-
hood will be in jeopardy.
Offences (regs 8–12)
It is a criminal offence under reg 8(1) if a trader (a)
knowingly or recklessly engages in a commercial prac-
tice which contravenes the requirements of professional
diligence and(b) the practice materially distorts or is
likely to materially distort the economic behaviour of
the average consumer. For the purposes of reg 8(1)(a) a
trader who engages in a commercial practice without
regard to whether the practice contravenes the require-
ments of due diligence will be deemed to have acted
recklessly, whether or not he has reason for believing
that the practice might contravene the requirements. A
reg 8 offence requires proof of mens rea.
The CPRs also create a number of strict liability
offences in relation to: misleading actions (with the
exception of code of practice commitments) (reg 9);
misleading omissions (reg 10); aggressive practices (reg
11); and specific unfair practices listed in Sch 1 (subject
to some exceptions relating to advertorials and advertis-
ing to children) (reg 12).
The penalties on conviction are, in the magistrates’
court, a fine up to the maximum of £5,000, and, in
the Crown Court, an unlimited fine or two years’
imprisonment.
Defences (regs 16–18)
In respect of the strict liability offences, the CPRs pro-
vide defences of due diligence and innocent publication
of advertisements and there is a ‘by-pass’ provision. To
rely on the defence of due diligence, the accused must
prove: that the commission of the offence was due to
a mistake, reliance on information given by another
person, the act or default of another, an accident, or
another cause beyond his reasonable control; and that
he took all reasonable precautions and exercised due
diligence to avoid the commission of an offence by him-
self or anyone under his control (reg 17). A person who
publishes, or arranges the publication of advertisements,
has a defence if he can show that he received the advert-
isement in the ordinary course of business and that he
did not know and had no reason to suspect that its pub-
lication would amount to an offence (reg 18). A by-pass
provision allows the prosecution to take action against
a person who is really responsible for an unfair trade
practice, who could not otherwise be charged with an
offence, e.g. a private (consumer) seller (reg 16).Enforcement (regs 19–27)
Responsibility for enforcement rests with the Office of
Fair Trading and local authority Trading Standards
Services in England and Wales. Enforcement authorities
are given the power to investigate whether a breach of
the regulations has occurred, and can make test pur-
chases, enter premises, copy documents, and seize and
detain goods.Product safety
The legal framework for dealing with the problem of
unsafe general products is contained in the General
Product Safety Regulations 2005 (SI 2005/1803) and
Part II of the Consumer Protection Act 1987. It should
be noted that food is also covered by the Food Safety
Act 1990.The General Product Safety Regulations
(GPS) 2005
The 2005 GPS Regulations implement the provisions of
a 2001 EC Directive on GPS. The 2001 Directive and the
2005 Regulations supersede an earlier 1992 Directive on
GPS and 1994 GPS Regulations respectively. The 2005
Regulations also repeal s 10 of the CPA 1987. The GPS
Regulations impose requirements concerning the safety
of products intended for consumers or likely to be used
by consumers where such products are placed on the
market by producers or supplied by distributors. The
new regulations came into force on 1 October 2005.Part 3Business transactions