It is unfair according to the law if it is misleading or aggressive. Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market illustrates when a commercial practice is misleading or unfair.
A commercial practice is misleading if it contains false information, or, in any way, including its general presentation, deceives or probably would deceive the average consumer, which is likely to cause the consumer to make a decision related to a transaction he would not have otherwise taken. The misleading commercial practice also applies even if the information is correct, regarding, for example:
- the existence or nature of the product;
- the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, aftersales customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
- the extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
- the price or the manner how it is calculated;
- the need for a service, part, replacement, or repair;
- the consumer’s rights including the right to replacement or reimbursement emanating from Directive (EU) 2019/771.
Likewise, it is misleading if it involves:
- Any marketing of a product, including comparative advertising, which creates confusion with any products, trademarks, trade names of another competitor; or
- If a trader does not comply with firm commitments contained in the codes of conduct by which the trader has undertaken to be bound.
A commercial practice shall be regarded as misleading if the information needed by the average consumer to make an informed decision to purchase a product or service is left out, causing the average consumer to make a decision that he would not have otherwise taken. If the trader hides the information or provides it in an unclear unintelligible, ambiguous or untimely manner, also amounts to misleading.
The law also states which misleading commercial practices are unfair and prohibited in all circumstances:
- Falsely claiming to be a signatory to a code of conduct;
- Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;
- Claiming that the code of conduct has an endorsement from a public or other body which it does not have;
- Bait advertising – that is, inviting customers to purchase products at a specified price without indicating whether they can deliver such goods, or if the trader shows a faulty sample of a product, intending to promote a different product;
- Falsely stating that a product will be available for a very short time so that consumer make an instance decision without allowing them time to reflect;
- Stating that a particular product can be legally sold when it cannot;
- Falsely claiming that a product can cure illnesses;
- Describing a product as being “free”, the consumer must pay anything other than the unavoidable cost of replying to the trader and collecting or paying for delivery of the item;
- Stating or creating the impression that a product can legally be sold when this is not the case;
- Seeks payment for a marketed product that the consumer has not ordered.
An aggressive commercial practice significantly restricts a consumer’s freedom of choice through harassment or coercion, leading him to make an unwanted decision. The law states that in determining whether such practice is aggressive, account shall be taken of:
- the timing, location, nature, or persistence;
- the use of threatening or abusive language or behaviour;
- the exploitation by the trader of any specific misfortune or circumstance which is grave enough as to impair the consumer’s judgement;
- Any onerous or disproportionate non-contractual barriers imposed by the trader, including rights to terminate a contract or to switch to another product or another trader;
- any threat by the trader to take any action that cannot legally be taken.
These are some examples of aggressive practices that are prohibited in all circumstances by law:
- If the trader creates the impression that the consumer cannot leave the premises until a contract is formed;
- Bothering the consumer by making telephone calls, fax, e-mails or by other forms of distance communication, except where it is legally justified to enforce a contractual obligation;
- Visiting the consumer’s home, ignoring the consumer’s request to leave or not to return except in those circumstances justified, under law, to enforce a contractual obligation;
- Creating the false impression that the consumer has won, will win, or will on doing a particular act win a prize when this is not true or demands money from the consumer to obtain such a prize;
- Informs in no uncertain terms the customer that his livelihood will be at risk if he does not buy the product.