New Digital Markets, Competition and Consumers Act 2024 will revoke the Consumer Protection from Unfair Trading Regulations 2008 and introduce additional rights for consumers as regards unfair commercial practices.

What has happened?

• The law governing unfair commercial practices by traders to consumers is currently contained in the EU-derived Consumer Protection from Unfair Trading Regulations 2008 (called the CPR here but sometimes referred to as CPUT). They not only govern issues concerning the contract of sale (including its entry into force, performance and enforcement), but the advertising and marketing of products, and ensure that consumers are treated fairly. 

• The recently passed Digital Markets, Competition and Consumers Act 2024 (DMCCA) will – when the relevant provisions are commenced - revoke the CPR and replace them with similar (but enhanced) provisions. Commencement is expected in April 2025.  

• While the overall changes are relatively minimal, they should not be ignored, not least because the DMCCA will also (when relevant provisions are commenced) give the Competition and Markets Authority (CMA) new powers to enforce consumer laws directly, including to issue fines of up to 10% of a businesses' global annual turnover. Read our article on this by CMA director, Jason Freeman, here.

• Here, we consider some of the key changes the DMCCA introduces over the CPR, including changes to the list of commercial practices always considered unfair, the additional wording on drip pricing and changes to the definitions of key terms. We also include a comparison of the CPR and DMCCA 'always considered unfair" clauses in table form. We do not consider the new regime for subscription contracts.

Note that an earlier version of this article, comparing the draft DMCC with the CPR, was published last year. This new article substantially updates our previous article.

Commercial practices always considered unfair

As with the CPR, the DMCCA contains a list of commercial practices which are in all circumstances considered unfair. The new list builds on and adds to the practices already contained in the CPR and reflects wider attempts by regulators to address dark patterns and other unfair practices.

The existing and new provisions are compared in full in this table. The following changes are particularly worth noting:

• The list now includes various provisions banning fake consumer reviews. This followed a consultation by the government earlier this year on the scope of this provision. The prohibitions are broad and include various acts relating to the submission, commissioning and publishing of fake reviews, as well as the offering of such services to traders. A "fake consumer review" means a consumer review that purports to be based on a person's "genuine experience" but is not. There are no such equivalent provisions in the CPR although some of these practices would fall foul of other banned practices in the CPR.

• The prohibition on pressure selling by falsely stating that a product will only be available for a limited time has been slightly broadened. This reflects wider concerns about online choice architecture and dark patterns (more in our article here).

• The two provisions concerning after-sales services have both been broadened as regards changes of language (as part of the service) and the availability and location of the service. 

• The prohibition on making materially inaccurate claims concerning personal security now extends to personal safety as well as to anyone living in the consumer’s home (and not just the consumer and their family).

• The provision about making false medical claims has been significantly enhanced to include, for example, falsely claiming that a product is able to modify a person’s appearance and to expressly cover conditions of the mind. It also now relates to claims that a product is able to "prevent or treat" as well as "cure", again reflecting a broader scope. This no doubt reflects concerns about the advertisement and sale of products and treatments online.  

• The prohibition on making persistent and unwanted solicitations now extends to solicitations made by any means, other than by attending at the consumer’s home.

All the other changes are largely cosmetic or for clarity. Note that a proposal to add greenwashing to the list of practices always considered unfair did not make it into the final version of the DMCCA and seems unlikely to be added in the short to medium term.

Power to amend list of always unfair practices

The DMCCA gives the Secretary of State power to amend the list of practices always considered unfair using secondary legislation (as well as to extend individual rights of consumer redress). This should give the government greater scope to respond to changes in the marketplace. 

Omission of material information from invitation to purchase

The "omission of material information" from an invitation to purchase continues to constitute an unfair commercial practice under the DMCCA, as under the CPR. However, there is no longer a requirement to show that the omission is likely to cause the average consumer to take a transactional decision that the consumer would not have taken otherwise. (Note, however, that the transaction decision requirement still applies where the practice in question is a misleading action, misleading omission, aggressive practice and/or contravention of the requirements of professional diligence.) 

Knowing what constitutes an invitation to purchase (so that the right information can be included) is key for traders. As under the CPR, it looks as though the omission of the price can continue to mean that an advert is not characterised as an invitation to purchase under the DMCCA.

Drip pricing and the invitation to purchase

The list of what constitutes "material information" in an invitation to purchase has also been expanded to reflect concerns about drip pricing – the practice of displaying a headline price followed by disclosing additional charges during the sales process. The main changes are three-fold:

• The DMCCA now makes clear that the "total" price of a product must be displayed in the invitation to purchase (whereas the CPR talks only of the "price", not "total" price) and it is much clearer what this total price should include. Broadly, it must include payments the consumer will "necessarily incur" ie payments which are not optional. 

• As under the CPR, if the whole or any part of the (total) price cannot reasonably be calculated in advance, then the invitation to purchase must state how this will be calculated. The DMCCA now also mandates that the information provided must be such as to enable the consumer to calculate the total price and be set out with as much prominence as the total price. 

• Any freight, delivery or postal charges, including any taxes, not included in the total price of the product but which the consumer "may choose to incur" must also be set out (although the prominence requirement does not extend to this information).

Other changes including to definitions

Some of the other changes of note (including to defined terms) are:

• The changes to the definition of "commercial practice" make clear that the law applies to any act or omission by a trader relating to the promotion or supply of (a) the trader's product to a consumer, (b) another trader's product to a consumer, and (c) a consumer's product to the trader or another person. This makes express what was already contained in the CPR or had been decided in case law under the CPR. 

• Certain commercial practices are unfair if they are likely to cause the "average consumer" to take a transactional decision that they would not otherwise have taken. The "average consumer" is now deemed not to know information in relation to a commercial practice where such information has been concealed by the trader (even if the average consumer might know the information from another source). This puts more onus on the trader to ensure that the consumer is made aware of all relevant facts relating to the purchase of the goods or services. 

• There is a tweak to the definition of vulnerability so that the non-exhaustive list of factors relevant to whether a consumer is vulnerable now expressly includes the consumer's circumstances. Further, the wording about exaggerated claims and vulnerable persons in the CPR has not been replicated in the DMCCA.

• There definition of "transactional decision" has been slightly broadened and set out more clearly in the DMCCA.

• Some of the lists contained in the CPR have not been replicated in the DMCCA. This includes the non-exhaustive list of what may constitute the main characteristic of a product and the exhaustive list of false or misleading matters. The list of factors that must be considered when establishing whether a commercial practice is aggressive has also been amended. The practical impact of these changes is unlikely to be particularly significant except in odd cases.

Impact on retained EU case law

The restatement of the law in the DMCCA might give the UK courts greater scope to move away from pre-Brexit CJEU case law under the Unfair Commercial Practices Directive which the CPR implemented. This is because, where a piece of retained EU law has been modified, pre-Brexit CJEU case law is no longer binding on the UK courts. Having said this, the UK courts can rely on this case law to interpret modified retained EU law if doing so is consistent with the intention of the modifications - and the Explanatory Notes to the DMCCA certainly suggest that this case law will still be relevant.

Consideration will also need to be given to how the loss of the general principles – and supremacy - of EU law under the Retained EU law (Revocation and Reform) Act 2023 will affect the interpretation of consumer laws. 

Application and timing

When commenced, the DMCCA unfair commercial practices provisions will apply to conduct occurring on or after commencement and the CPR will continue to apply to conduct occurring before that date (with the exception of consumers' individual rights of redress, which are expected to come into force later).

The government has said that it expects to commence relevant sections of the DMCCA on unfair commercial practices (as well as the CMA's new powers of direct enforcement) in April 2025. The CMA is already consulting on the latter. Reforms to the law on subscription contracts will follow but not before Spring 2026.

Since many of the unfair commercial practices are also reflected in the CAP and BCAP Codes, CAP has said that it will consult on any necessary changes to the Codes engendered by the DMCCA.

What does this mean for you?

• Businesses should check that they continue to comply with the new provisions under the DMCCA. It will particularly be necessary to check the way in which pricing information is displayed, as well as the use of limited time offers and consumer reviews. Changes to systems or practices might be needed. 

• Those offering after sales services or who target vulnerable persons will also need to consider the new broadened provisions. 

• The new definitions should be carefully considered on a case-by-case basis. 

• Getting it right will now be even more important given that the DMCCA also introduces new powers for the CMA to enforce these (and other provisions) directly (including to issue significant fines directly for breaches without the need to go to court) – more on that here.