More from The Consumer Protection from Unfair Trading Regulations 2008
Definition 1
?professional diligence? means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either?
(a) honest market practice in the trader?s field of activity, or
(b) the general principle of good faith in the trader?s field of activity;
Definition 2
?materially distort the economic behaviour? means in relation to an average consumer, appreciably to impair the average consumer?s ability to make an informed decision thereby causing him to take a transactional decision that he would not have taken otherwise;
Regulation 8 linky
8.?(1) A trader is guilty of an offence if?
(a)he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence under regulation 3(3)(a); and
(b)the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product under regulation 3(3)(b).
(2) For the purposes of paragraph (1)(a) a trader who engages in a commercial practice without regard to whether the practice contravenes the requirements of professional diligence shall be deemed recklessly to engage in the practice, whether or not the trader has reason for believing that the practice might contravene those requirements.
Regulation 3 linky
3.?(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if?
(a)it contravenes the requirements of professional diligence; and
(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.
(4) A commercial practice is unfair if?
(a)it is a misleading action under the provisions of regulation 5;
(b)it is a misleading omission under the provisions of regulation 6;
(c)it is aggressive under the provisions of regulation 7; or
(d)it is listed in Schedule 1.
Are Bounty operating in good faith, honestly and with professional diligence? Either knowingly or unknowingly?
Food for thought on that: If Bounty are knowingly or unknowingly operating in a way that leads women to believe that they are part of the NHS or in someway affiliated to the NHS or/and be unaware that they are commercial company who are collecting personal details for financial gain or marketing are they materially distorting behaviour? Are they being professionally diligent and are they acting within the principle of good faith in the trader's area of activity?
(Note: I'm not entirely sure what the 'trader's area of activity relates to - it could be simply marketing, but it could be the fact they operate on a maternity ward where other staff are subject to ethical behaving in the best interests of the patient and the expectation of patients would be that they would also act in the same way. It'd be interesting to know. I personally hope it refers to the later, and I think that perhaps it does)
Either way I'm really liking the sound of the 'knowingly or unknowingly' and the stuff about 'whether or not the trader has reason for believing'...
Legal bods, please correct me if I'm wrong but surely this theoretically means that, if there is significant evidence to suggest that there is widespread confusion happening over whether Bounty are acting in a commercial way or whether they are part of the NHS because of blurred boundaries going on, whether or not this is intentional on the part of Bounty should be irrelevant and this would be down to their lack of professional diligence to ensure this was occurring. There wouldn't be a need to prove intent; merely that there is sufficient confusion that is affecting behaviour of patients customers.
(Btw I saw the idea about crowdfunding legal action on twitter made by a certain Mr Goldacre. I think its an excellent suggestion)