The Competition and Markets Authority is consulting on draft guidance about the protection from unfair trading provisions in the Digital Markets, Competition and Consumers Act 2024.
The unfair commercial practices (UCP) provisions in the DMCC Act prohibit unfair commercial practices, replacing and updating the Consumer Protection from Unfair Trading Regulations 2008. The UCP provisions:
- contain prohibitions of practices that are likely to cause the average consumer to take a different transactional decision because of a misleading action, misleading omission, aggressive practice, or a contravention of the requirements of professional diligence.
- prohibit the omission of material information from an invitation to purchase, 32 specific commercial practices in Schedule 20 to the DMCC Act, and the promotion of unfair commercial practices in codes of conduct.
The CMA has produced draft guidance on the UCP provisions which updates and, once finalised, will replace its current guidance.
The draft guidance illustrates how the UCP provisions may apply in practice and is intended to help traders to comply with them. In particular, it covers new provisions relating to drip pricing and fake reviews, both of which will be of particular interest to tech lawyers dealing with consumer-facing websites and apps.
Currently, only a court may determine whether a commercial practice had been unfair under the 2008 Regulations. After the DMCC Act’s consumer law enforcement provisions come into force, in addition to the courts, the CMA will also be able to decide whether a commercial practice is unfair under the DMCC Act, although the CMA’s decisions will be appealable to the courts.
The CMA’s consultation ends on 22 January 2025.
(B)CAP consultation on DMCC Act changes
In addition, the Committee of Advertising Practice (CAP) and the Broadcast Committee of advertising Practice (BCAP) are consulting about proposed amendments to their Codes to reflect the changes to UK consumer law in the DMCC Act. CAP and BCAP’s proposals cover all sections of the Codes that include rules derived from the 2008 Regulations, which are to be replaced by the relevant sections of the DMCC Act.
In addition, CAP and BCAP have identified certain other areas not connected to changes in the DMCC Act, where rules could benefit from more precise wording in alignment with the relevant underlying law, and where that could be achieved in a straightforward manner.
Most of the changes are in the sections on misleading advertising, as well as those setting out the legal background to the rules. There are also amendments to the following sections:
- Recognition of marketing communications;
- Children;
- Use of data for marketing;
- Medicines, medical devices, health-related products and beauty products; and
- Environmental claims.
The consultation ends on 5 February 2025. CAP has also said that it will produce further guidance about fake reviews in due course.
