When consumers go shopping they have important buying decisions to make. They need to decide what to buy and where to buy the goods and services from.

It is prohibited to take a consumer to a remote destination with no apparent return transport unless the consumer signs the contract- Odette Vella

To be able to make the best buying decisions, it is crucial that consumers are offered transparent and accurate information. Part VII of the Consumer Affairs Act specifically deals with commercial practices that are deemed unfair.

A commercial practice is considered unfair when it goes against the requirements of professional diligence, that is, honest marketing practices or good faith, and is likely to alter the economic behaviour of the average consumer it reaches or to whom it is addressed.

In particular, a commercial practice is unfair if it is either misleading or aggressive.

A commercial practice is regarded as misleading if it either contains false information, or even if the correct information is likely to deceive the average consumer.

Misleading omissions are also banned because consumers need information to make informed choices.

A commercial practice is considered misleading if it hides or provides material information in an unclear, unintelligible, ambiguous or untimely manner.

It is also considered misleading if a commercial practice fails to identify the intent of the commercial practice, if not already apparent from the context.

The first schedule of the Consumer Affairs Act lists a number of practices considered misleading and thus prohibited.

Among these we find:

• Making false claims about being a signatory to a code of conduct;

• Displaying an unauthorised trust mark, quality mark, or equivalent;

• Using bait advertising – offering goods for sale at a price traders know they are unable to honour;

• Using bait and switch tactics, that is, offering goods for sale at a specified price with a view of selling a different product;

• Falsely stating that a product will only be available for a limited time to deprive consumers of sufficient opportunity to make an informed choice;

• Giving the wrong impression that after-sales service is available in another EU member state;

• Making false claims that a particular product or service is free when it is not;

• Claiming to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent;

• Making false claims that a trader is about to cease trading or move premises;

• False claims that products can cure illness or disabilities;

• Creating the impression that the trader is not acting in the course of his trade but on behalf of a consumer.

An aggressive commercial practice occurs when the average consumer’s freedom of choice is significantly impaired through harassment, coercion, including physical force, or undue influence.

Such aggressive practices include sales tactics that try to intimidate or coerce consumers, the use of threatening or abusive behaviour, and also practices that try to take advantage of consumers considered vulnerable because of mental or physical infirmity, age or credulity.

The Consumer Affairs Act provides a list of specific practices that are banned because they are considered aggressive. In this list we find situations where the trader gives the impression that the consumer cannot leave the premises until a contract is drawn up and signed; or the trader refuses to leave a consumer’s home after being requested to do so; or explicitly telling the consumer that if they do not buy, the trader’s job is in jeopardy.

It is also prohibited to take a consumer to a remote destination with no apparent return transport unless the consumer signs the contract. Even advertisements directly aimed at getting children to buy products or persuading adults to buy for them is considered an aggressive practice and is therefore not allowed.

It is important to point out that these rules on unfair commercial practices apply to any business-to-consumer transaction, irrespective of product or service, or circumstance of the transaction – whether this is face to face, via telephone, internet or mail.

Furthermore, this legislation only protects the economic behaviour of consumers. Other interests, such as health, safety, taste and decency, are outside the scope of the legislation.

Whenever consumers encoun­ter trading practices that are either misleading or aggressive, these may be reported to the Office for Consumer Affairs on Freephone 8007 4400.

customer@timesofmalta.com

odette.vella@gov.mt

Ms Vella is senior information officer, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.

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