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Consumer law: clarifying the recent changes
There have been a host of changes to consumer law in England and Wales over the past couple of years, and it has been time-consuming (!) getting my head around them. I wanted to share a summary of key requirements and the applicable legislation, highlighting what has changed (and what has not).
The focus of the below table is on the rules applicable to relationships between businesses and consumers. However, I have also included references to some equivalent rules for business to business relationships.
| TOPIC | OLD LAW | CURRENT LAW | |
|---|---|---|---|
| 1. |
Implied contract terms
Certain terms are automatically implied into contracts for the sale or supply of goods or services (under the new legislation, the contract is “treated as including” certain terms). For sales and supplies of goods (and, under the new legislation, digital content), these include terms relating to quality, fitness for purpose, and matching a description. For supplies of services, these include terms relating to reasonable care and skill, reasonable performance times and reasonable charges. There are also provisions relating to delivery and passing of risk for goods, and remedies for non-compliance (such as repair, replacement or price reduction). |
Sale of Goods Act 1979 and
Supply of Goods and Services Act 1982
Applied in relation to business to business, and business to consumer contracts. |
Sale of Goods Act 1979 and
Supply of Goods and Services Act 1982
Still apply in relation to business to business contracts. Consumer Rights Act 2015 There are also more provisions on remedies for non-compliance in relation to services, including repeat performance and price reduction. |
| 2. |
Unfair contract terms
Provisions of a contract which seek to limit or exclude certain types of liability (including the implied terms referred to above), and other unreasonable or unfair terms, may be unenforceable under this legislation. |
Unfair Contract Terms Act 1977
Applied in relation to business to business, and business to consumer contracts. Unfair Terms in Consumer Contracts Regulations 1999
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Unfair Contract Terms Act 1977
Still applies in relation to business to business contracts. Consumer Rights Act 2015 Key changes include rules applicable to notices (as well as contracts) which purport to exclude liability, and on the prominence of terms relating to price and the main subject matter of the contract. |
| 3. |
Distance contracts, off-premises contracts and on-premises contracts
Distance contract: A business enters into a contract with a consumer at a distance (such as over the internet or telephone). Off-premises contract: A business enters into a contract with a consumer at a location other than the premises of the business, but not at a distance (such as at the consumer’s home or place of work). On-premises contract: A business enters into a contract with a consumer other than a distance contract or an off-premises contract (such as in person at business premises or where there have been face-to-face discussions prior to conclusion remotely). The business must provide certain compulsory information to the consumer (including main characteristics of the goods or services, identity of the trader, total price). The consumer also has a right to cancel a distance contract or an off-premises contract (generally within 14 days under the new law). Additional charges (such as premium rate helplines or payments not agreed in advance) can also be unlawful. There are also requirements relating to the process for orders for goods or services made electronically. |
The Consumer Protection (Distance Selling) Regulations 2000 and
The Cancellation of Contracts made in a Consumer’s Home or Place of
Work etc Regulations 2008
Applied in relation to distance contracts and off-premises contracts respectively entered into before 13 June 2014. Note: The Provision of Services Regulations 2009 and The Electronic Commerce (EC Directive) Regulations 2002 also include requirements relating to making certain information available, an electronic ordering process, and in relation to complaints handling. |
Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 In force from 13 June 2014 Apply to distance contracts, off-premises contracts and on-premises contracts. Key changes include provisions relating specifically to contracts for digital content (as well as those relating to tangible goods and services), an increase in the cancellation period from seven to 14 days and the additional provisions relating to on-premises contracts. Note: The Provision of Services Regulations 2009 and The Electronic Commerce (EC Directive) Regulations 2002 also still apply. |
| 4. |
Unfair commercial practices
Unfair commercial practices relating to the sale or supply of goods and services to consumers are prohibited. This includes acts, omissions, conduct, representations, communications, advertising and marketing which are misleading or aggressive. The legislation specifies criminal offences for non-compliance. |
The Consumer Protection from Unfair Trading Regulations 2008
Prohibit unfair commercial practices of a business when dealing with a consumer. Note: Misleading advertising to businesses is prohibited under The Business Protection from Misleading Marketing Regulations 2008. Note: Industry Codes of Practice also contain rules on advertising and marketing, including the CAP Code and BCAP Code which relate to non-broadcast advertising and broadcast advertising respectively. |
The Consumer Protection from Unfair Trading Regulations 2008
Still apply. Some enhanced provisions relating to inertia selling (supply of unsolicited goods) were introduced into these Regulations by the Consumer Rights Act 2015. |
| 5. |
Direct marketing
Rules apply to the sending of unsolicited communications for direct marketing purposes made by telephone, automated call, fax, email, SMS and other electronic mail. Depending on the method of communication and the type of recipient (business or consumer), consent may be required and/or rights to refuse the communication must be respected. There are also requirements to identify the sender and provide contact details. |
The Privacy and Electronic Communications (EC Directive) Regulations 2003
Apply in relation to unsolicited marketing communications sent by electronic means. Note: The Direct Marketing Code of Practice, the CAP and BCAP Codes referred to above, and the Data Protection Act 1998 referred to below, also contain rules relating to direct marketing communications. |
The Privacy and Electronic Communications (EC Directive) Regulations 2003
Still apply. Note: The Direct Marketing Code of Practice, the CAP and BCAP Codes and the Data Protection Act 1998 also still apply. |
| 6. |
Protection of personal data
Organisations which process personal data relating to living individuals must comply with obligations relating to fairness of use, purpose limitations, quality, security and retention of data, rights of individuals, and restrictions on transfers outside the EU. |
Data Protection Act 1998
Applies to organisations which process personal data. |
Data Protection Act 1998
Still applies, but due to be replaced by a new EU Data Protection Regulation in the next couple of years. Watch out for more news about the upcoming changes! |
Olivia Whitcroft, principal of OBEP, 19 November 2015
This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details
