The Competition and Markets Authority's Consultation on Draft Guidance on the Protection From Unfair Trading Provisions- Which? response

Which? welcomes the opportunity to respond to the publication of the draft Guidance on the protection from unfair trading provisions in the Digital Markets, Competition and Consumers (DMCC) Act 2024. The Guidance is a critical component that should help ensure that the Act delivers a high level of business compliance and therefore improved consumer protection. 

We are supportive of this guidance as we believe it is clear and well structured, however, given the prevalence of such practices in recent years, we have suggested that some areas of the guidance are expanded to ensure businesses are clearly informed of the steps necessary to avoid actions that mislead and distort consumer choice. These suggestions include: 

• Further examples of bait and dynamic pricing, in particular to provide clarity on what should be considered ‘reasonable quantities’ in relation to bait pricing and to incorporate specific examples of how the legislation applies to dynamic pricing, including adding any issues stemming from the CMA’s Ticketmaster/Oasis investigation.
• The examples of commercial practices applying to prohibitions would benefit from more clarity and specific examples regarding what constitutes elements of transactional decision making, misleading omissions. The distinction between harassment, coercion, or undue influence should be made clearer and further illustrations on the rights to consumer redress would aid understanding.
• Further examples to aid compliance with the new drip pricing provisions, including common travel issues, and aspects of material pricing. Examples would be helpful to clarify the distinctions between mandatory and optional charges across a wider range of scenarios and further linking to other relevant legislation.
• Further clarifications regarding the banned practice provisions relating to fake reviews would help business comprehension, including the issues of manipulation of reviews via selective presentation, the restriction of access rights to databases to prevent this, and the issues with sale/brokerage of reviews.