A few weeks ago, the UK government launched a consultation on consumer law, even while the Digital Markets, Competition and Consumers Bill passes through parliament. The CMA has now published its detailed response to the consultation.  The CMA supports the Bill, especially the government’s intentions to protect consumers from fake reviews and problematic subscriptions.

Display of pricing information

The CMA agrees that traders should be required to adopt consistent unit pricing measurements for comparable products that can be sold by weight or by volume and that the prominence and legibility of pricing information should be improved. It also agrees that retailers should be explicitly required to display the promotional unit price for all products offered for sale to consumers on promotion, wherever practical. Regarding deposit return schemes, the CMA considers that (for now) the deposit for products subject to a deposit return scheme should be included in the selling price. However, it acknowledges the potential benefits in not including the deposit in the unit price, as this enables consumers to compare the unit price of products on the basis of the drink (the liquid product) where some packaging materials used for some products may not be included within a deposit return scheme while others are. The CMA also says that the definitions of selling and unit price currently set out in Article 1(2) of the Price Marking Order should be updated to account for deposit return schemes.

Hidden fees and drip pricing

The CMA considers that there should be a specific banned practice on the drip pricing of all mandatory elements as well as other charges which are “optional” but which it is reasonably foreseeable that most consumers would pay, or which any consumer would have to pay, even if others could avoid them. This is to prevent charges being classed as variable or ‘optional’ to give a headline price which misleads consumers. The CMA thinks that mandatory variable and ‘optional’ charges should be included in the stated headline price, so that such charges are not all variable or ‘optional’ to keep headline prices as low as possible. If the trader will present the consumer with genuinely optional extras as part of the purchasing process, these should be prominently and fully disclosed with the headline price. The CMA says this should be no more than one click away, if there are genuine limitations of space.

Fake reviews and online platforms

The CMA supports the proposals to introduce new banned practices in relation to fake reviews. This is important to clarify traders’ legal responsibilities; and to reduce the time and cost associated with any enforcement action – which it says will improve compliance with the law. While in the CMA’s view, traders who publish reviews must prevent consumers’ decisions from being distorted, compliance will be improved by specifying that they must take effective steps to identify and tackle fake reviews; and avoid publishing inaccurate or otherwise misleading information such as overall ratings, review counts and rankings based on these reviews. 

More generally, where online platforms publish, provide access to or facilitate content originating from third parties, the CMA considers that professional diligence requires the operator to take or use reasonable, proportionate and effective measures – including proactive measures – to tackle economically harmful illegal content.  Such measures might include taking proactive steps to identify and assess the systemic risks of harm to consumers from economically harmful content on the platform and then implementing specific proactive measures to tackle the harmful content and prevent it from affecting consumers’ economic decision-making. It might also include making it easy for consumers and other parties to report potentially harmful content. Platforms could also consider applying appropriate and effective sanctions to deter this content/activity in future – such as banning repeat offenders – and keeping records of sanctions.  Finally, it says that systems, policies and processes for the prevention, detection and removal of economically harmful illegal content should remain effective and keep pace with evolving threats/patterns of abuse. 

The CMA considers that all breaches of the Consumer Protection from Unfair Trading Regulations (which are substantively restated in the Bill), not only the banned practices, should be backed up by effective private rights of action. It has also responded on questions about online interface orders and the question of the professional diligence of online platforms.

As the Bill continues its passage through parliament, it will be interesting to see what its final shape looks like. If you would like more information about consumer law developments more generally, we have now published our consumer law tracker.