European Communities (Misleading and Comparative Marketing Communications) Regulations, 2007

• Jurisdiction: Ireland
• Citation: IR SI 774/2007

S.I. No. 774 of 2007

EUROPEAN COMMUNITIES (MISLEADING AND COMPARATIVE MARKETING COMMUNICATIONS) REGULATIONS 2007

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 30th November, 2007.

I, MICHEÁL MARTIN, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 1 , hereby make the following regulations:

1. These Regulations may be cited as the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007.

2. (1) In these Regulations—

“code of practice” means any code, agreement or set of rules or standards that is not imposed by or under an enactment but purports to govern or define (with or without other matters) matters relating to the marketing communication of one or more traders (whether generally or in respect of a particular trade, business or profession) who agree, commit or undertake to abide or be bound by such rules or standards;

“code owner” means any person responsible for either or both of the following:

(a) formulating or revising a code of practice;

(b) monitoring compliance with the code by those traders who agree, commit or undertake to abide or be bound by it;

“comparative marketing communication” means any form of representation made by a trader that explicitly or by implication identifies a competitor of the trader or a product offered by such a competitor;

“Directive” means Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 1 ;

“goods” means real or personal property of any nature or description and includes—

(a) ships, aircrafts or other vehicles,

(b) animals,

(c) minerals, trees or crops, whether on, under or attached to land or not,

(d) gas, electricity or water,

(e) computer software,

(f) tickets or like evidence of a right to be in attendance at a particular place at a particular time or times or a right of transportation,

(g) any voucher, coupon, or other document or thing intended to be used as a substitute for money in the payment, in whole or in part, for a product or otherwise exchanged for a product, and

(h) any description of interest (present or future, vested or contingent) or obligation arising out of, or incidental to, goods;

“marketing communication” means any form of representation made by a trader in connection with a trade, business or profession in order to promote the supply of a product;

“product” means goods or services;

“representation” includes—

(a) any oral, written, visual, descriptive, or other representation by a trader, including any commercial communication, marketing or advertising, and

(b) any term or form of a contract, notice or other document used or relied on by a trader in order to promote the supply of a product;

“services” means any service or facility provided for gain or reward or otherwise than free of charge, including—

(a) services or facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) amusement, cultural activities, entertainment, instruction, recreation or refreshment,

(iii) accommodation, transport, travel, parking, or storage, or

(iv) the care of persons, animals or things,

(b) membership in a club or organisation or any service or facility provided by the club or organisation, and

(c) any rights, benefits, privileges, obligations or facilities that are, or are to be provided, granted or conferred in the course of services,

but does not include services provided under a contract of employment;

“supply”, in relation to the supply of a product to a trader, includes any of the following:

(a) sell, lease, take by way of mortgage or other security, assign or otherwise effect a disposition of;

(b) offer or agree to supply;

(c) expose or display for supply;

“trader” means—

(a) a person who is acting for purposes relating to the person’s trade, business or profession, or

(b) a person acting on behalf of a person referred to in paragraph (a).

(2) A word or expression that is used in these Regulations and is also used in the Directive shall have the same meaning in these Regulations as it has in the Directive.

3. (1) A trader shall not engage in a misleading marketing communication.

(2) A marketing communication is misleading if—

(a) in any way (including its presentation), it deceives or is likely to deceive in relation to any matter set out in paragraph (4) the trader to whom it is addressed or whom it reaches, and

(b) (i) by reason of its deceptive nature, it is likely to affect the trader’s economic behaviour, or

(ii) for any reason specified in this paragraph, it injures or is likely to injure a competitor.

(3) In determining whether a marketing communication under paragraph (2) is misleading, the marketing communication shall be considered in its factual context, taking account of all its features and the circumstances.

(4) The following matters are set out for the purposes of paragraph (2)(a):

(a) the existence or nature of the product;

(b) the main characteristics of the product, including any of the following:

(i) its geographical origin;

(ii) its commercial origin;

(iii) its availability at a particular time or place, or at a particular price;

(iv) its quantity, weight or volume;

(v) its benefits or fitness for purpose;

(vi) the results to be expected from it;

(vii) the risks it presents;

(viii) its usage or prior history;

(ix) its composition, ingredients, components or accessories;

(x) the specifications of the product, including the grade, standard, style, status or model of the product;

(xi) the after-supply customer assistance available in relation to the product;

(xii) the handling of complaints in relation to the product;

(xiii) the method or date of—

(I) the product’s delivery, supply or provision, and

(II) in the case of goods, their manufacture;

(xiv) the results and material features of test or checks carried out on the product;

(xv) in relation to a service, its execution or performance;

(c) the price of the product, the manner in which that price is calculated or the existence or nature of a specific price advantage;

(d) the need for any part, replacement, servicing or repair in relation to the product;

(e) the existence, extent or nature of any approval or sponsorship (direct or indirect) of the product by others;

(f) the nature, attributes, and rights of the trader who made the marketing communication, or on whose behalf it was made, including any of the following:

(i) the trader’s identity, qualifications, assets or status;

(ii) the trader’s affiliation or connection with others;

(iii) the existence, extent or nature of—

(I) any industrial, commercial or intellectual property rights the trader may have, or

(II) any award, distinction, approval or sponsorship (direct or indirect) the trader has or has received;

(g) the extent of the trader’s commitments;

(h) the trader’s motives for the commercial practice;

(i) the nature of the trader’s supply...