Although most marketing is directed at consumers, a large amount is directed at other businesses. The Business Protection from Misleading Marketing Regulations 2008 (BPR) are the business equivalent to the Consumer Protection from Unfair Trading Regulations 2008 (CPR) and they have some common elements.
The BPR prohibits advertising which misleads traders. Regulation 3 states advertising is misleading when it ‘deceives or is likely to deceive the traders to whom it is addressed or whom it reaches; and by reason of its deceptive nature, is likely to affect their economic behaviour; or for those reasons, injures or is likely to injure a competitor’.
Many factors will be considered when determining whether an advertisement is misleading. These include:
- The characteristics of the product.
- The price or way the price is calculated.
- The conditions on which the product is supplied or provided.
- The nature, attributes, and rights of the advertiser.
Comparative advertising is only permitted when it is not misleading under Regulation 3 of the BPR (above) and Regulation 5 of the CPR or a misleading omission of those regulations. (Other Stay Legal article titled ‘What are unfair commercial practices?’ and ‘What are the banned commercial practices?’ have discussed the CPR’s.) Comparative advertising must not create confusion among traders.
Regulation 6 has created a criminal offence relating to misleading advertisements for which an unlimited fine and/or on conviction, imprisonment for a term of up to two years as per Regulation 7. With the risk of a criminal conviction it is vital that your business marketing practices comply with the law.