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Consultation on framing and enforcing criminal sanctions in the Regulations implementing the Unfair Commercial Practices Directive

Starting Date: 11-12-06

Closing Date: 05-02-07

This consultation follows on from an earlier (December 2005) consultation on implementation of the Unfair Commercial Practices Directive (UCPD, 2005/29/EC).

The UCPD will harmonise Member States unfair trading laws, and will introduce a general duty on all businesses in the UK not to trade unfairly with consumers.

The Government’s Response to the December 2005 consultation said that the UCPD will be enforceable by civil and criminal sanctions. The Government expects most breaches of the Directive to be dealt with by civil or self-regulatory means. Yet we recognise that there will continue to be a need for criminal sanctions and investigatory powers to deal with the most serious breaches of the law.

This provoked considerable comment from stakeholders. This paper seeks views of consumer bodies, academics, businesses and enforcement authorities on two issues not addressed in the original consultation. These are:

  • whether offences in the regulations implementing the UCPD and the amended Misleading and Comparative Advertising Directive (MCAD) should include a mental element (mens rea), should rely on the current general approach of strict liability offences/due diligence defences, or should contain a combination of the two; and
  • on the Office of Fair Trading having the power to bring criminal prosecutions.

Consultation Documents

Consultation Responses