As the Digital Markets, Competition and Consumers Act's implementation rolls closer, the CMA is consulting on updated guidance about unfair commercial practices (UCP).  Readers will be aware that the new Act repeals and replaces the provisions of the Consumer Protection from Unfair Trading Regulations 2008, with a few key changes.  These include new requirements for drip pricing and fake reviews.  

As well as the rules about UCP, a significant change is the fact that currently, only a court can decide if a trader's practice is unfair, but once the relevant sections of the Act come into force in April, the CMA will be able to make that decision.  Although CMA decisions will still be open to challenge in the courts, and the courts might not agree with the CMA's views, it does mean that its guidance is significant in understanding the CMA's thinking.

It explains and gives examples of commercial practices which are likely to cause consumers to take decisions they would not have taken otherwise due to misleading actions or omissions, aggressive practices, or contraventions of professional diligence, and are prohibited in all circumstances, regardless of their impact on consumers' decision-making. As mentioned, this includes the prohibition of "drip pricing" of mandatory charges and a new banned practice in relation to fake consumer reviews.

The guidance is divided into four parts.  

Part 1 contains an introduction and a short overview, including a description of the scope of the UCP provisions. There is also a flowchart to help assess if commercial practices are unfair.

Part 2 deals with practices that involve prohibited conduct and are likely to cause the average consumer to take a different transactional decision, including the contravention of the requirements of professional diligence, misleading actions and omissions, and aggressive practices.

Part 3 details the practices that are prohibited regardless of their impact on the average consumer's transactional decisions. These include omitting material information from an invitation to purchase, including the prohibition of "drip pricing" and commercial practices that are banned in all circumstances; and promoting unfair commercial practices in codes of conduct.

Part 4 covers criminal offences relating to unfair commercial practices.

Finally, the Annexes to the Guidance contain: 

• examples of how the different prohibitions may be applied in practice (including how they may overlap in the context of a single commercial practice) ;
• a detailed explanation of the new banned practice in relation to fake consumer reviews and the steps that traders need to take to comply; and
• a summary of the changes that the DMCC Act makes to the 2008 Regulations.

We will be publishing more detailed guides about fake reviews, drip pricing and the broader changes to the unfair trading provisions in due course.

The CMA is particularly looking for views about the guidance on drip pricing and fake reviews.

The consultation ends on 22 January 2025.