Advertising is a marketing tool used by businesses to promote their products and services. Advertisements may take many forms, such as printed adverts in newspapers and magazines, television or radio adverts or signs in shops. Consumers may also be targeted with direct adverts via e-mail or text messages.
Advertising becomes illegal when it is used to deceive consumers into buying products and services that in reality are not as advertised by the seller. Such commercial practices are legally considered unfair and hence prohibited.
The Unfair Commercial Practices Regulations is the legislation that specifically bans unfair and abusive trading practices across the EU Single Market. This not only safeguards European consumers but also gives them confidence and hence encourages cross-border shopping.
Under these regulations, it is an offence for a trader to deceive consumers through false claims. Leaving out important information when promoting products or services is also considered a misleading commercial practice because consumers need information to make informed choices. Any information provided to consumers has to be clear, intelligible and unambiguous.
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 defined as a person considered to be reasonably well-informed, observant and quite cautious.
The Unfair Commercial Practices Regulations identify specific practices that are considered illegal and therefore banned. This list includes fake ‘free’ offers where businesses claim that a product is ‘free’ but in reality it is not, as consumers are asked to make a payment to get the offer.
Prize promotions with no prize or where consumers need to make a payment to claim the prize is another misleading commercial practice. The same applies to limited offers where the trader falsely states that a product will only be available for a very limited time to force consumers to take a rushed buying decision.
False claims that products can cure illnesses are prohibited, as are advertorials that fail to make clear that a trader has paid for media promotions. Creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold is also listed as an unfair commercial practice. Misleading commercial practices are prohibited in any business-to-consumer transaction, irrespective of the product or service, or the circumstance of the transaction, be it face-to-face, via telephone, internet or mail.
The Unfair Commercial Practices Regulations only protect the economic interest of consumers. Other interests, such as health, safety, taste and decency, are outside the scope of the regulations.
Misleading commercial practices may be reported to the Office for Consumer Affairs by calling 2395 2000 or by sending an e-mail to info@mccaa.org.mt.
odette.vella@mccaa.org.mt
Odette Vella is director, Information, Education and Research Directorate, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.