Which are some of the most common unfair commercial practices?In the sphere of consumer protection law, the European institutions have been fairly active in their legislative initiatives – the regulatory control over sellers has been significantly strengthened. An example would be the new Consumer Protection Cooperation Regulation (Regulation (EU) 2017/2394) – it created new powers for the Bulgarian Consumer Protection Commission, some of which include the power to remove content, to restrict access to an online interface, as well as to order domain registries or registrars to delete a fully qualified domain name. Being legally compliant is a prerequisite to having a successful online business. In this article, we will talk about some of the most common unfair commercial practices:


    - that every online seller should avoid;


    - against which a consumer can protect themselves.


In the Bulgarian Consumer Protection Law, the general prohibition of unfair commercial practices can be found in article 68c. The elements of the prohibition include:

a) a commercial practice, related to the supply of goods or services;
b) which is contrary to the requirements of professional diligence;
c) and which materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed.

As unfair commercial practice can be classified not only an act, but also an omission – for example, if a seller decides to keep silent about important information, which is likely to cause the consumer to take a transactional decision that the said consumer would not have taken, had they known about this information.

We can put all unfair commercial practices into two major categories (art. 64d(4)): misleading commercial practices and aggressive commercial practices. The legal requirements for both of them to be classified as “unfair” can be found in articles 68e-68k.

However, let's put the legal theory aside and concentrate on the most common unfair commercial practices:

“Bait advertising”
When a seller decides to sell goods/services at very low prices, they are obliged to warn their customers about the time period of the offer, as well as about quantity of the goods available for sale (ex: only three left). Sellers should not advertise products/services at a very low price if they do not have enough stock available.

Example: A seller puts up for sale branded glasses for 50 euros, rather than for 100 euros (their original price). After a consumer has shown interest to buy them, the seller refuses to sell them, saying that the glasses, that were offered at a significantly reduced price, were only a very limited number and are no longer available. The consumer will have the right to complain to the national consumer protection authority, because the seller should have given information about the number of glasses, available for purchase at the reduced price.

„Bait and switch” – a variation of the Bait Advertising practice
If the seller has made an invitation to purchase products at a specified price to their customers, but then:
a) refuses to show the advertised item to consumers; or
b) refuses to take orders or deliver it within a reasonable time; or
c) demonstrates a defective sample of it
with the intention to offer a different good/service to the consumer – will also be considered as unfair commercial practice.
“Free offers”
The seller is obliged to communicate the real price of the goods/services they offer to the consumers and cannot portray anything as “free” if their price is included in the regular price.

Examples:
A seller claims that buying any of their paints includes free paint accessories, but if the paint is actually more expensive than the regular market price. What this means is that the paint accessories are not, in fact, free.
A seller claims to be offering “free books” when actually the consumer needs to pay for the books and only every third book is given for free.

False claims about cures
When a product is advertised as therapeutic (claims to contain health or nutritional benefits), the consumer has the right to know if such claims have been scientifically confirmed.

Example: А seller, who claims that the shampoo they have put up for sale cures hair loss, could be breaching the law. References to general, non-specific benefits for overall good health or well-being should be substantiated by scientific evidence.

Hidden advertisements in media (advertorials)
Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer is classified as unfair commercial practice.

Example: A user, watching his favourite YouTube channel, notices that the products that are most commonly used in the videos are from a couple specific brands. The consumer has the right to know whether the “Youtuber” uses the products by these brands because he promotes them, or whether it is his personal choice to cook with them because of their quality.

“Special advantages” for consumers
The seller should not claim that they are granting a consumer a “special right, if the latter already enjoys these under consumer law.

Example: The seller claims to be offering a special right to a consumer, who buys a coffee machine from them, giving them a 2-year guarantee that the machine will be repaired or replaced if it turns out to be faulty or not as advertised. This is not a special right, offered by the seller - the consumer has an enforceable legal right to claim for repair/replacement in these circumstances.

“Time-limited offers”
If a seller states that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, thus depriving the consumers of sufficient opportunity or time to make an informed choice, they will be in breach of consumer protection law.

Example: A consumer sees an offer in a online marketplace with the following words: “Buy now in the next 24 hours and you will receive e 50% discount!”. If this offers remains available for more than the 24-hour period, the consumer will have the right to complain to the nation consumer protection authority.
A variation of this unfair commercial practice is the following offer: “Buy now! Last pair of trainers available!” if the seller actually has more than a single pair available in store, they will again be in breach.

A consumer that has entered into a contract after having been victim of an unfair commercial practice, has the right to terminate the contract and claim compensation, but only after there has been a court ruling, confirming the unfair nature of the commercial practice. In case of doubts for unfair commercial practices, every consumer can make a complaint to the Bulgarian Consumer Protection Commission.

Sources:
- The official website of the European Union

- Communication by the Bulgarian Ministry of economics and energy


If you would like to read more articles on the topic of consumer protection, check out the following links:
1. Consumer Protection Commission – the new Lord of the Web?

2. Consumer protection – what’s new and why now?

3.What changed for consumers and sellers on the Internet?


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Elitsa Tchobanova

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Tags: E-commerce; Consumer protection; Digital business