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CHAPTER 2

THE WEAPONS OF LAW

2.4.2Misleading Advertising
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In 1984 the European Council, in its effort to protect consumers, and persons carrying on a trade or business or practising a craft or profession, against misleading advertising and the unfair consequences thereof, adopted Directive (84/450/EEC). Member States were required to bring into force measures necessary to comply with this Directive by 1st October 1986 at the latest. However, it was not until 1988 that the requirements of the Directive became Law, in both the U.K. and Ireland, under the Misleading Advertising Regulations.


Under these Regulations:

(1)

‘advertising’ and ‘misleading advertising’ are to be understood as defined in Article 2 of the European Council Directive, as follows:

(a)

‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations;

(b)

‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor;

(2)

In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning:

(a)

the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;

(b)

the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or services provided;



 

The Regulations, while providing a legal means for the control of misleading advertising, offer no remedy by way of damages or compensation to the victims of such advertising, and again the injured party must pursue his own Civil Action.


However, both the clarity and scope of the Directive’s definitions on ‘advertising’ and ‘misleading advertising’, together with the stated determining features to be taken into account when assessing whether advertising is misleading, have far reaching implications. 


Reference to these definitions and determining features
[as with the ‘Guidelines’ for the Application of the Reasonableness Test, described in Section 2.2.4 (c)] provides an important, statute defined yardstick in matters relating to pre-contract promotional representations (particularly representations made in any explanatory pamphlet, catalogue, etc.) with respect to the supply of goods or services. Another useful weapon has therefore been added to the injured party’s /consumer's armoury.

 

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