© 2011 itsa Ltd on behalf of the Trading Standards Institute.
The Business Protection from Misleading Marketing Regulations 2008 replace the Trade Descriptions Act 1968 in respect of protecting businesses. The Regulations prohibit misleading business-to-business advertising and impose further restrictions on how businesses compare their products to rival products from other companies.
In the guide
The legislation
What do the Regulations cover?
What is prohibited?
Comparative advertising
What are the consequences of non-compliance?
Further reading
The legislation
The Business Protection from Misleading Marketing Regulations 2008 (BPRs) came into force on 26 May 2008 and implement the Misleading and Comparative Advertising Directive. The Control of Misleading Advertisements Regulations 1988 were repealed by the 'consumer' version of the legislation - the Consumer Protection from Unfair Trading Regulations 2008 (CPRs - see our leaflet 'A guide to the Consumer Protection from Unfair Trading Regulations').
It is useful to look at both sets of regulations as they are similar and there are elements in each that overlap.
What do the Regulations cover?
These Regulations deal mainly with the potential misleading of traders, although there are rules on comparative advertising that can be targeted both at traders and consumers.
Part 1 of the Regulations prohibits misleading advertising and also lays down strict guidelines for comparative advertising. It also ensures misleading advertising is not promoted by any code owner (namely a body responsible for a code of conduct).
Parts 2, 3 and 4 deal with the criminal offences and defences, the enforcement duty, and powers respectively.
What is prohibited?
Effectively, the BPRs prohibit advertising that is misleading to traders. There are four main issues to take into account when deciding if the advertising is misleading:
- the product characteristics (13 in total, including availability, composition and specification)
- the price or manner in which the price is calculated
- the conditions on which the product is supplied or provided
- the nature, attributes and rights of the advertiser (five in total, including identity and assets)
Comparative advertising
Comparative advertising is permitted only when all of the following conditions of the advertisement are met:
- it is not misleading under the BPRs or the CPRs
- it compares products that meet the same needs or are intended for the same purpose
- it objectively compares one or more material, relevant, verifiable and representative feature(s) of those products (may include price)
- it does not create confusion among traders, either between the advertiser and competitor, or between trade marks (or similar) of products of the advertiser and those of a competitor
- it does not discredit, denigrate or take unfair advantage of a competitor's trade mark (or similar)
- for products with designation of origin, it relates in each case to products with the same designation
- it does not take unfair advantage of the reputation of a trade mark (or similar) of a competitor or of the designation of origin of competing products
- it does not present products as imitations or replicas of products bearing a protected trade mark or trade name
A code owner is not permitted to promote (in a code of conduct) advertising that is misleading under the BPRs or comparative advertising that does not meet the listed conditions.
Comparative advertising would be considered a misleading action (Regulation 5 of the CPRs) if:
- it contains false information or is likely to deceive the average consumer
- the marketing of the product creates confusion, or the trader fails to comply with a commitment in a relevant code of conduct
And if in both cases the consumer makes a transactional decision he would not have normally made.
Comparative advertising would be considered to be a misleading omission (Regulation 6 of the CPRs) if:
- material information is omitted, hidden or unclear, and as such the consumer makes a transactional decision he would not have normally made
What are the consequences of non-compliance?
The BPRs contain criminal offences for a breach of Regulation 3 (general misleading advertising). Prosecution can be taken by the Office of Fair Trading (OFT), trading standards services, or the Department of Enterprise Trade and Investment in Northern Ireland (and by the Lord Advocate in Scotland). The penalties are:
- on summary conviction, a fine not exceeding the statutory maximum (currently £5,000)
- on conviction on indictment, an unlimited fine or imprisonment for up to two years (or both)
Enforcers may also take civil enforcement action (an injunction) for this offence. This is also the only enforcement action that can be taken in respect of breaches of Regulation 4 (comparative advertising not meeting the relevant requirements) and Regulation 5 (promotion of misleading advertising by code owner).
Further reading
More comprehensive guidance is available on the OFT website, including a downloadable guide.
Please note
This leaflet is not an authoritative interpretation of the law and is intended only for guidance. Any legislation referred to, while still current, may have been amended from the form in which it was originally enacted. Please contact us for further information.
Relevant legislation
Business Protection from Misleading Marketing Regulations 2008
Consumer Protection from Unfair Trading Regulations 2008
Last reviewed/updated: April 2012
© 2013 itsa Ltd on behalf of the Trading Standards Institute.
