Protecting businesses from misleading advertising

From 26 May 2008, advertising which misleads traders or comparative advertising which does not satisfy certain conditions will be prohibited.

Advertising means any form of representation by a business to promote the supply or transfer of goods or services, including immoveable property, rights and obligations.

Advertising is misleading where it deceives or is likely to deceive businesses, and potentially affect their economic behaviour.

Comparative advertising directly or indirectly identifies a competitor or a competitor's product. If you use comparative advertising, it has to meet certain conditions. For example, it must not:

• compare products or materials not designed for the same purpose
• confuse traders as to the advertiser and the competitor
• present imitations or replicas of products bearing a protected trade mark or trade name
• take unfair advantage of the reputation of competitors' trade marks, trade names, other distinguishing marks, or country of origin information
• mislead traders or consumers

Code owners will not be permitted to promote misleading advertising or comparative advertising that does not meet the prescribed conditions. Code owners are traders or bodies that are responsible for producing, monitoring or revising a code of practice.

The Office of Fair Trading and Trading Standards may apply to the courts for injunctions to stop any breach of the Regulations. 

Advertising which misleads traders will be a criminal offence. You and your employees should therefore take all reasonable steps and carry out due diligence to make sure that the advertisements you use to promote your goods or services will not in any way mislead your audience.

An offence will not be committed where a business simply publishes or arranges for the publication of advertising. This applies where they have no reason to suspect that the publication of a particular advertisement would amount to an offence.

Full title of regulation
Business Protection from Misleading Marketing Regulations 2008 [SI 2008 1276]; Directive 2006/114/EC

Links

Information on misleading advertising (on the BERR website)

Documents on the main competition rules (on the OFT website)

Explanatory memorandum to the misleading advertising regulations (from the Office of Public Sector Information website)