Commercial practices are practices a trader uses to sell his products or services. These usually include advertising, promotional activities, and selling methods.
Part VII of the Consumer Affairs Act is the legislation that sets out clearly what unfair commercial practices are. By prohibiting unfair commercial practices, consumer law ensures that traders adopt transparent and honest commercial practices and hence provide us with what we need to make free and well-informed buying choices.
A trading practice is considered unfair if it is likely to impair our consumer ability to make an informed choice or leads us to a wrong buying decision. Unfair trading practices are usually either misleading or aggressive.
A commercial practice is misleading when a trader does something to deceive us into making a different buying decision to the one we might have made if we had been presented with the true facts.
This is usually caused by false information or by leaving out important information when promoting products or services. The law identifies specific practices that are considered misleading and therefore banned. Some examples include:
• Fake ‘free offers’ where businesses claim that a product is ‘free’ when in reality consumers have to pay for it;
• Prize promotions where there is no prize or consumers must make a payment to claim a prize;
• False claims that products can cure illnesses or disabilities;
• Limited offers where the trader falsely states that a product will only be available for a limited time to elicit an immediate buying decision;
• Advertorials that fail to make clear that a trader has paid for media promotions.
A commercial practice is also considered misleading if it is likely to deceive the average consumer, even if the information presented is correct. An average consumer is considered to be reasonably well informed, observant and quite cautious. To not be misleading, any information provided to consumers has to be clear, intelligible and unambiguous.
A trading practice is considered unfair if it is likely to impair our consumer ability to make an informed choice
An aggressive commercial practice occurs when a trader harasses consumers or puts pressure to make a buying decision the consumers would not have made.
Aggressive practices include sales tactics that try to intimidate or coerce consumers; the use of threatening or abusive behaviour; and practices that try to take advantage of consumers the trader could foresee to be vulnerable because of mental or physical infirmity, age or credulity.
The law lists specific examples of commercial practices that are considered aggressive. These include situations where:
• The trader creates the impression that the consumer cannot leave the premises until the sales contract is signed;
• The trader refuses to leave a consumer’s home after being requested to do so;
• Taking a consumer to a remote destination with no apparent return transport;
• Advertisements directly aimed at getting children to buy products or persuade adults to buy for them.
Both misleading and aggressive commercial practices are prohibited in any business-to-consumer transaction, irrespective of the product or service or circumstance of the transaction, whether it’s face to face, via telephone, internet or mail.
Unfair trading practices may be reported to the Office for Consumer Affairs within the Malta Competition and Consumer Affairs Authority in writing or by calling personally at Mizzi House, National Road, Blata l-Bajda, or Freephone 8007 4400 or 2395 2000.
odette.vella@mccaa.org.mt
Odette Vella is senior information officer, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.