Legal Updates

Commercial Law – The Business Protection from Misleading Marketing Regulations 2008 – Comparative Advertising

The Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276) (BPRs) come into force in the United Kingdom on 26 May 2008.  The BPRs implement the Misleading and Comparative Advertising Directive (2006/114/EC) in the UK and replace the Control of Misleading Advertisements Regulations 1988.

Advertising which misleads traders is prohibited under the BPRs and comparative advertising is permitted only if specified conditions are met. It is a criminal offence under the BPRs to engage in misleading advertising, but certain defences are available. See brief summary below.

Prohibition of advertising which misleads traders (Reg 3)

“…(1) Advertising which is misleading is prohibited.

(2) Advertising is misleading which—

(a) in any way, including its presentation, deceives or is likely to deceive the traders to whom it is addressed or whom it reaches; and by reason of its deceptive nature, is likely to affect their economic behaviour; or

(b) for those reasons, injures or is likely to injure a competitor.

(3) In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning—

(a) the characteristics of the product (as defined in paragraph (4));

(b) the price or manner in which the price is calculated;

(c) the conditions on which the product is supplied or provided; and

(d) the nature, attributes and rights of the advertiser (as defined in paragraph (5)).

(4) In paragraph (3)(a) the “characteristics of the product” include—

(a) availability of the product;

(b) nature of the product;

(c) execution of the product;

(d) composition of the product;

(e) method and date of manufacture of the product;

(f) method and date of provision of the product;

(g) fitness for purpose of the product;

(h) uses of the product;

(i) quantity of the product;

(j) specification of the product;

(k) geographical or commercial origin of the product;

(l) results to be expected from use of the product; or

(m) results and material features of tests or checks carried out on the product.

(5) In paragraph (3)(d) the “nature, attributes and rights” of the advertiser include the advertiser’s—

(a) identity;

(b) assets;

(c) qualifications;

(d) ownership of industrial, commercial or intellectual property rights; or

(e) awards and distinctions”.

Comparative advertising (Reg 4)

“…Comparative advertising shall, as far as the comparison is concerned, be permitted only when the following conditions are met—

(a) it is not misleading under regulation 3;

(b) it is not a misleading action under regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008(5) or a misleading omission under regulation 6 of those Regulations;

(c) it compares products meeting the same needs or intended for the same purpose;

(d) it objectively compares one or more material, relevant, verifiable and representative features of those products, which may include price;

(e) it does not create confusion among traders—

(i) between the advertiser and a competitor, or

(ii) between the trade marks, trade names, other distinguishing marks or products of the advertiser and those of a competitor;

(f) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor;

(g) for products with designation of origin, it relates in each case to products with the same designation;

(h) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;

(i) it does not present products as imitations or replicas of products bearing a protected trade mark or trade name”.

Promotion of misleading advertising and comparative advertising which is not permitted (Reg 5)

“…A code owner shall not promote in a code of conduct—

(a) advertising which is misleading under regulation 3; or

(b) comparative advertising which is not permitted under regulation 4”.

Misleading advertising (Reg 6)

“…A trader is guilty of an offence if he engages in advertising which is misleading under regulation 3”.

Penalty for offence under regulation 6 (Reg 7)

“…A person guilty of an offence under regulation 6 shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both”.

Offences committed by bodies of persons (Reg 8)

“…(1) Where an offence under these Regulations committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer of the body, or

(b) to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In paragraph (1) a reference to an officer of a body corporate includes a reference to—

(a) a director, manager, secretary or other similar officer; and

(b) a person purporting to act as a director, manager, secretary or other similar officer.

(3) Where an offence under these Regulations committed by a Scottish partnership is proved—

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(4) In paragraph (3) a reference to a partner includes a person purporting to act as a partner”.

Due diligence defence

“…(1) In any proceedings against a person for an offence under regulation 6 it is a defence for that person to prove—

(a) that the commission of the offence was due to—

(i) a mistake;

(ii) reliance on information supplied to him by another person;

(iii) the act or default of another person;

(iv) an accident; or

(v) another cause beyond his control;

and

(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

(2) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of the matters referred to in paragraph (ii) or (iii) of paragraph (1)(a) without the leave of the court unless—

(a) he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was in his possession; and

(b) the notice is served on the prosecutor at least seven clear days before the date of the hearing”.

Innocent publication defence (Reg 12)

“…In any proceedings against a person for an offence under regulation 6 committed by the publication of advertising it is a defence for that person to prove that—

(a) he is a person whose business it is to publish or to arrange for the publication of advertising;

(b) he received the advertising for publication in the ordinary course of business; and

(c) he did not know and had no reason to suspect that its publication would amount to an offence under regulation 6”.

For a copy of the BPRs see http://www.opsi.gov.uk/si/si2008/uksi_20081276_en_1%20

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.