The Regulations have been described as the biggest change in consumer legislation for 40 years. BERR (the Department for Business Enterprise and Regulatory Reform) claims that this will help to make our consumer protection regime the world's best. BERR adds that people will get a fair deal, value for money, safe and high quality products and greater choice.

Great stuff, but many ask - how do you legislate to produce fairness?

Legislating fairness

Well, the Government clearly thinks you can, in a document that runs to 48 pages. It introduces a general obligation for traders to treat consumers fairly.

It also obliges businesses not to mislead consumers or to subject them to aggressive commercial practices. Moreover, it demands additional protection for vulnerable consumers.

Those involved, particularly retailers - but also suppliers - are urged to obtain and read these Regulations. The Government believes this will help to eliminate rogue traders.

But will it really? Are rogue traders likely to change their habits because of these new Regulations? Is it not the case that they were probably already in breach of existing legislation. They probably hadn't read that; are they any more likely to be cowed by the 2008 version?

The Government argues that the new Regulations will simplify existing legislation and provide greater clarity. The new regulations will after all replace provisions contained in 23 separate pieces of existing UK legislation. Consumer affairs minister Gareth Thomas is on record as saying: "This law is good news for consumers, honest businesses, and Trading Standards and the OFT which will enforce it. It delivers better protection for consumers, cuts red tape and puts in place a simpler and clearer consumer law that will be easier to interpret and enforce."

The new Regulations will ban 31 types of unfair sales practices, including bogus closing down sales, prize draw scams, and aggressive doorstep selling. There will also be what BERR calls "a catch-all duty not to trade unfairly".

The obstacles

All very laudable. However, when you start reading the new Regulations you will quickly realise the practical difficulties of trying to legislate in this area.

First, there are definitions. Everything has to be clearly defined. The Regulations start with the obvious ones, like "product", "premises", and "consumer". But then there are others like "invitation to purchase" and "average consumer" which are more contentious. Then bring it all together and you end up with statements like this: "In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect".

Then there are the "Prohibitions". Again, the Regulations try to cover all eventualities, running through "promotions", "misleading actions", "misleading omissions", and "aggressive commercial practices". Then tie these in with "material information", the "main characteristics of the product" and you end up with a sort of matrix of things that you must or must not do.

What shall we do next?

So what should retailers and manufacturers do?

Clearly there is a need to read the new Regulations and review existing sales and commercial practices. We certainly do not want to see traders being prosecuted for technical breaches. Trade associations will have to try to provide guidance. There is much concern, however, that we may not fully understand these new Regulations until 'case law' is developed. In other words, we need to see actual cases of what is deemed to be acceptable practice and what is not.

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