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Misleading: withholding, omitting or concealing material information.
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46.— (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision (“material information”) and such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
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(2) A commercial practice is misleading if—
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(a) the trader—
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(i) provides material information referred to in subsection (1) in a manner that is unclear, unintelligible, ambiguous or untimely, or
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(ii) fails to identify the commercial intent of the practice (if such intent is not already apparent from the context),
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and
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(b) such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
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(3) If a commercial practice is or includes an invitation to purchase, each of the following constitutes material information for the purposes of this section, unless already apparent to the consumer in the context of the commercial practice:
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(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
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(b) the geographical address of the trader, the identity of the trader (such as his or her trading name) and, if the trader is acting in a consumer transaction as an agent of another trader, the geographical address and the identity of that other trader;
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(c) the price of the product (inclusive of taxes) or, if the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated;
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(d) any freight, delivery or postal charges that apply in relation to the product or, if such charges cannot reasonably be calculated in advance, a statement of the fact that such charges will apply and be payable by the consumer;
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(e) the handling of consumer complaints in relation to the product or the arrangement for payment, delivery or performance, if such handling or arrangement does not meet or accord with—
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(i) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers, or
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(ii) the general principle of good faith in the trader’s field of activity;
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(f) if applicable, the legal rights of a consumer (whether contractual or otherwise) to withdraw from or cancel the consumer transaction.
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(4) The material information set out in subsection (3) is in addition to and not instead of any other information that the trader is required by law to provide to a consumer, including, without limitation, any information required to be provided by regulations under this Act.
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(5) In determining whether a commercial practice is misleading under this section, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances, including—
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(a) the space or time available in any communications medium used, and
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(b) any measures taken by the trader to make the material information available to consumers by other means.
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