The Trade Descriptions Act 1968 (TDA 1968), s 3(2) provides that a trade description which, though not false, is misleading in that it is likely to be taken as an indication of such of the matters specified in TDA 1968, s 2 and, as such an indication, would be false to a material degree, shall be deemed to be a false trade description.

Misleading actions can be split into three categories: • giving false information or deceiving consumers (including by virtue of the way in which the information is presented) • creating confusion with competitor’s products (ie confusing marketing), and • failing to honour commitments made in a conduct'>code of conduct The category of misleading actions therefore is not only concerned with the situation where false information is provided, but also where information (albeit factually correct) is presented in a way that could deceive consumers. The EU UCPD Guidance notes that it is for the national courts and administrative authorities to assess the misleading character of a commercial practice by taking into account the most recent findings on behavioural economics. For example, using default settings or providing complex information may be misleading.

ARCHIVED: This Practice Note has been archived and is not maintained. From 6 April 2025, the Consumer Protection from Unfair Trading Regulations 2008, SI 2008//1277 have been revoked and replaced by the Digital Market, Competition and Consumers Act 2024 (DMCCA 2024). However, CPUTR 2008, SI 2008/1277 will still apply to any conduct occurring prior to 6 April 2025. For information on misleading actions under DMCCA 2024, see Practice Note: Misleading actions under the Digital Markets, Competition and Consumers Act 2024. Misleading actions An action can be misleading in relation to a commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277, in two different ways. The first way under CPUTR 2008, SI 2008/1277, reg 5(2) is if it: • contains false information and is therefore untruthful in relation to any of the matters set out in regulation 5(4) or if its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that

As of 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024) revoked and replaced the consumer protection regime under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277. This Practice Note covers the offence of engaging in a commercial practice that is a misleading action under DMCCA 2024. Although the provisions for this offence under DMCCA 2024 largely mirror those under CPUTR 2008, SI 2008/1277 the law has been clarified to make clear that the misleading presentation of true information may nonetheless constitute a misleading action. For further analysis of unfair commercial practices under DMCCA 2024, see News Analysis: The new law relating to unfair commercial practices. Note that CPUTR 2008, SI 2008/1277 will still apply to conduct occurring prior to the commencement of DMCCA 2024. For information on misleading actions under the previous regime, see Practice Note: Misleading actions under the Consumer Protection from Unfair Trading Regulations 2008 [Archived]. For background information on the evolution of DMCCA 2024 and a review of the key

A misleading advertisement is an advertisement which deceives or is likely to deceive the persons to whom it is addressed or whom it reaches, and which is likely to affect their economic behaviour.

An advertisement is misleading if: • it deceives, or is likely to deceive the traders it addresses or reaches, and • the deception is likely to affect the economic behaviour of those traders or as a result of the above effect on traders it injures or is likely to injure a competitor in some way. An advertisement will be likely to affect the economic behaviour of traders if, for example, it induces or is likely to induce them to part with money for what is being advertised. A competitor may be injured as a result of traders being deceived by a misleading advertisement, for example, where an advertiser misleads traders into using their services when the trader actually intended to use the service of company X (a competitor), perhaps by confusing the trader into believing they were actually dealing with company X. This is likely to injure company X (the competitor) as company X loses out on business as a result of the misleading advertisement.

Commercial analysis: The Competitive Market Authority (CMA) issued an open letter to the fashion retail sector, urging them to consider their obligations under consumer protection law. The open letter accompanied undertakings, entered into by Boohoo, Asos and Asda, to bring to an end the CMA's investigation into their alleged use of misleading environmental claims. Rona Bar-Isaac, partner, head of Competition, co-head of Retail & Consumer Sector of Addleshaw Goddard, considers the misleading consumer claims as the CMA puts down a marker ahead of the DMCC Act's implementation.

Misleading impressions—elements of the offence Section 90 of the Financial Services Act 2012 (FSA 2012) creates an offence of misleading impressions. A person commits an offence of misleading impressions if they do any act or engage in any course of conduct which creates a false or misleading impression as to the market in, or the price of, any relevant investments and they intended to do so and: • by creating the impression they intend to induce another person to acquire, dispose of, subscribe for or underwrite the investments or to refrain from doing so or to exercise or refrain from exercising any rights conferred by the investments, and/or • they know that the impression is false or misleading or is reckless as to whether it is, and by creating the impression, they intend that it will result in their, or another's, gain or a loss Unlike the third limb of the misleading statements offence under FSA 2012, s 89, there is no element of dishonesty in this offence. An 'investment' includes

Pensions analysis: In the determination of Mr S (PO-23653), the Deputy Pensions Ombudsman has awarded a member £1,000 for serious distress following the receipt of inaccurate information about his benefits. That information was too limited and out-of-date for Mr S to reasonably rely on it, hence the decision not to make any further awards. Martin Scott of gunnercooke LLP looks at the decision

Environment analysis: In a world first, a decision by a Texan judge has confirmed that misleading investors on climate change-related risks poses serious legal risks to companies and their directors. Sophie Marjanac, lawyer at ClientEarth, considers the implications of the ExxonMobil decision and investors’ rights to have information relating to the impact of climate change on business.

Information Law analysis: In Vince v Associated Newspapers Ltd, the Court of Appeal held that the Daily Mail's juxtaposition of a claimant's photographs alongside a ‘sex pest donor’ headline (which referred to an entirely different person) constituted unfair processing under article 5(1)(a) of the United Kingdom General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR). The court overturned the High Court's strike out and summary judgment for the publisher, instead granting Mr Vince summary judgment on liability for damages to be assessed. This is the first known successful unfair processing claim against a media organisation. The court drew a critical distinction between unfair and inaccurate processing, holding that the ‘whole article’ principle in Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (Charleston) (the existing shield for publishers in defamation) does not apply to fairness claims. The IPSO Editors' Code, which requires publishers to take care not to publish misleading headlines, was central to the Court of Appeal’s reasoning. Written by Gaelyn Fuhrmann at Wiggin LLP.

ARCHIVED: This Practice Note has been archived and is not maintained. From 6 April 2025, the Consumer Protection from Unfair Trading Regulations 2008, SI 2008//1277 have been revoked and replaced by the Digital Market, Competition and Consumers Act 2024 (DMCCA 2024). However, CPUTR 2008, SI 2008/1277 will still apply to any conduct occurring prior to 6 April 2025. For information on misleading omissions under DMCCA 2024, see Practice Note: Misleading omissions under the Digital Markets, Competition and Consumers Act 2024. The offence of misleading omissions Engaging in a commercial practice that is a misleading omission is made an offence by the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277, reg 6 and 10. CPUTR 2008, SI 2008/1277, reg 10 provides that a trader is guilty of an offence if they engage in a commercial practice which is a misleading omission under SI 2008/1277, reg 6. A misleading omission is one that: • omits material information • hides material information • provides material information in a manner