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Consumer Slot (or is it?) by Cliff Shining


That must be against the Trades Description Act, surely?’. We’ve all heard that said when a label isn’t accurate or a product turns out to be not all it seems. Most people have a vague idea that there is such a thing as the “Trades Description Act” and that it stops businesses from making claims that aren’t true. What is the reality?

Indeed there is a Trade Descriptions Act, which came into force in the 1960s and served the country extremely well for forty years. It said, in essence, that if you were in business you weren’t to say something about your goods and services that wasn’t true. (It consists of over forty sections on twenty-eight pages, but that was the gist of it.) Any breach of the law could see the business in court and fined.

But such an approach has two main disadvantages; one is a lack of wriggle-room. The circumstances of a case either fitted into the requirements of the Act, or they didn’t. Guilty or not guilty. Where the decisions of the Court seemed perverse, the matter could ultimately be decided by the Court of Appeal, and over forty years many were. But the process is very expensive for cash-strapped local authorities, and must be used with extreme caution. Furthermore, a conviction didn’t help disadvantaged consumers as there was usually no redress as part of the process.

Enter, in 2008, a new way of doing things in the form of a general duty on businesses not to engage in unfair trading practices. It’s a bit of a mouthful, but throw in a few definitions of what amounts to an unfair trading practice and you have a very useful bit of kit for Trading Standards. Misleading acts or omissions are unfair trading practices if the act or omission is likely to cause the average consumer to make a different decision. So the business is in trouble not only if it tells you something that isn’t true, but if it fails to tell you something important, such as a used car having been in a significant accident, or a trades-person not having the necessary qualifications.

Aggressive practices are also prohibited, where the consumer’s decision-making is subject to coercion or harassment. An example might be cowboy roofers suddenly quadrupling the price quoted to elderly householders. Furthermore, thirty-one practices are deemed unfair in all circumstances. Examples include ‘bait and switch’, where consumers are drawn in by an offer that may not exist and then persuaded to go for something else, or prize draws where the prizes don’t exist.

Along with this new approach came a different way for Trading Standards to use the Courts. It is now possible for them to require businesses to give an undertaking that they will carry out a particular course of action. This may be that they will immediately cease a particular practice, or that they will recompense consumers, or provide important information to consumers. If a business refuses to give such an undertaking Trading Standards can seek a court order requiring the necessary course of action. If a business continues to carry on an unfair practice after giving an undertaking, or breaches a court order, this amounts to contempt of court and can lead to fines or imprisonment.

So next time you’re in the pub and someone says ‘that must be against the Trades Description Act’, you can say ‘I think you must be referring to the Consumer Protection from Unfair Trading Regulations 2008’. Hmmm ... thinking about it, I think we need a snappier title.

Cliff Shining.