Consumer Protection Act 2007

PART 1 Preliminary Matters

1. Short title and commencement.

1.— (1) This Act may be cited as the Consumer Protection Act 2007.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions, including the application of section 4 to different enactments specified in Schedule 2 and to different provisions of those enactments.

2. Interpretation and application.

2.— (1) In this Act—

F1["Act of 2022" means the Consumer Rights Act 2022;]

“advertisement” includes any form of advertising or marketing;

“Agency” means the National Consumer Agency established by section 7;

F2["authorised officer"—

(a) in relation to the functions performed by the Competition and Consumer Protection Commission under this Act, has the same meaning as it has in the Competition and Consumer Protection Act 2014, and

(b) in relation to the functions performed by the Commission for Communications Regulation under this Act, has the same meaning as it has in section 39 of the Communications Regulation Act 2002;]

“chief executive” means the chief executive officer of the Agency;

“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 commercial practices of one or more traders (whether generally or in respect of a particular trade, business or professional sector or one or more commercial practices) who agree, commit or undertake to abide or be bound by such rules or standards;

“commercial practice” means any conduct (whether an act or omission), course of conduct or representation by the trader in relation to a consumer transaction, including any such conduct or representation made or engaged in before, during or after the consumer transaction;

F3["consumer" means a natural person (whether in the State or not) who is acting wholly or mainly for purposes unrelated to the person’s trade, business or profession;]

“consumer transaction” means a promotion or supply of a product to a consumer;

“contravene”, in relation to a provision, includes fail to comply with the provision;

F1["digital content" has the same meaning as it has in the Act of 2022;]

F1["digital service" has the same meaning as it has in the Act of 2022;]

“Directive” means Directive No. 2005/29/EC of the European Parliament and of the Council of 11 May 2005^1 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council;

“Director” means the Director of Consumer Affairs;

F1["distance contract" has the same meaning as it has in Part 5 of the Act of 2022;]

“enactment” means an Act (within the meaning of the Interpretation Act 2005) or any instrument made under a power conferred by an Act (within that meaning);

“establishment day” means the establishment day appointed under section 6;

“existing enactments” means the following enactments, to the extent to which those enactments confer functions on the Director which are transferred to the Agency pursuant to section 37:

(a) food legislation, within the meaning of the Food Safety Authority of Ireland Act 1998;

(b) the enactments specified in Part 1 of Schedule 1 and any instruments made under those enactments for the time being in force; and

(c) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 1;

“financial year” means a period of 12 months ending on 31 December in any year and, in the case of the first financial year of the Agency, means the period commencing on the establishment day and ending on 31 December in the year in which the establishment day falls;

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

(a) ships, aircraft or other vehicles,

(b) animals,

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

(d) gas, electricity or water,

F3[(e)computer software, including content stored in a digital format or content stored electronically in a format which is not digital,]

(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;

“goods or services” means goods or services or both;

“invitation to purchase” means a representation by the trader in a consumer transaction that—

(a) indicates characteristics of the product and includes its price, and

(b) enables the consumer to purchase the product;

“Minister” means the Minister for Enterprise, Trade and Employment;

F1["online marketplace" means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers;]

F1["ranking" means the relative prominence given to products, as presented, organised or communicated by the trader, irrespective of the technological means used for such presentation, organisation or communication;]

“prescribed” means prescribed by regulations made by the Minister;

F2["product" means any goods or services including immovable property, a digital service and digital content, as well as rights and obligations;]

“public body” means—

(a) a board, authority or other body, other than a company under the Companies Acts, established by or under statute;

(b) a company under the Companies Acts in which all the shares are held—

(i) by or on behalf of a Minister of the Government, or

(ii) by directors appointed by a Minister of the Government;

(c) a company under the Companies Acts in which all the shares are held by a board, authority or body referred to in paragraph (a) or by a company referred to in paragraph (b);

“purchase” means to buy, obtain or acquire by any method and includes accept, receive, be vested with, lease, take possession, control or occupation of, and agree to do any of those things (but does not include expropriate);

“relevant State” means a state that is a contracting State to the EEA Agreement within the meaning of the European Communities (Amendment) Act 1993;

F4["relevant statutory instruments" means the statutory instruments for the time being in force specified inSchedule 9;]

“relevant statutory provisions” means—

(a) existing enactments,

F4[(aa)relevant statutory instruments,]

(b) the Merchandise Marks Act 1970 and any instruments made under that Act for the time being in force,

(c) certain provisions of the Prices Act 1958 referred to in section 92 and the enactments specified in subsection (1)(a) to (e) of that section to the extent to which they remain in force for the purposes of this Act,

F5[(d) the enactments specified insubsection (1)(a)to(c)ofsection 93,

F6[(e) this Act and any instrument made under this Act for the time being in force,]]

F7[(f) the European Communities (Names and Labelling of Textile Products) Regulations 2010 (S.I. No. 485 of 2010),

(g) the European Communities (Safety of Toys) Regulations 2011,

(h) the European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) Regulations 2011,

(i) the European Union (Textile Fibre Names and Related Labelling and Marking of the Fibre Composition of Textile Products) Regulations 2012,

(j) the European Union (Requirements for Credit Transfers and Direct Debits in Euro) Regulations 2013 (S.I. No. 132 of 2013),

(k)F9[…]

(l)F9[…]]

F10[(m) the European Union (Interchange Fees for Card-based Payment Transactions) Regulations 2015 (S.I. No. 550 of 2015)F11[,F9[…]]]

F12[(n) the following provisions of the European Union (Payment Services) Regulations 2018 (No. 6 of 2018):

(i) paragraphs (2), (5) and (6) of Regulation 33, and

(ii) paragraph (6) of Regulation 86, to the extent that that paragraph applies as respects a case where—

(I) the payee (within the meaning of those Regulations) is a trader that is not a regulated financial service provider (within the meaning of theCentral Bank Act 1942), and

(II) the payer (within the meaning of those Regulations) is a consumer;]

F1[, and

(o) the Act of 2022.]

“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 connection with a consumer transaction;

“services” means any service or facility provided for gain or reward or otherwise than free of charge, including, without limitation—

(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 goods or services to a consumer, includes—

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

(b) offer or agree to supply or expose or display for supply;

“trader” means—

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

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

F3["transactional decision" means, in relation to a consumer transaction, whether or not that transaction is completed, any decision by the consumer concerning whether, how or on what terms to do, or refrain from doing, any of the following:

(a)purchase the product;

(b)make payment in whole or in part for the product;

(c)retain or return the product after its purchase;

(d)dispose of the product;

(e)exercise a contractual right in relation to the product;]

“voluntary body” means—

(a) a body corporate, or

(b) an unincorporated body of persons,

other than a public body.

(2) In this Act, “the average consumer” has the meaning assigned to it in the Directive, and when applied in relation to a particular commercial practice or product of a trader—

(a) if the commercial practice or product is directed at a particular group of consumers, the expression shall be read as “the average member of that group”, and

(b) if the commercial practice or the product is a practice or product that would be likely to materially distort the economic behaviour only of a clearly identifiable group of consumers whom the trader could reasonably be expected to foresee as being particularly vulnerable because of their mental or physical infirmity, age or credulity, the expression shall be read as “the average member of that vulnerable group”.

(3) A word or expression that is used in this Act and is also used in the Directive shall have in this Act the same meaning as it has in the Directive.

(4) A court shall construe this Act in a manner that gives effect to the Directive, and for this purpose the court shall have regard to the provisions of the Directive, including its preambles.

(5) Notwithstanding Article 3(10) of the Directive but subject to sections 5 to 6A (inserted by section 99) of the Hallmarking Act 1981, Part 3 applies to commercial practices relating to indications of the standard of fineness of articles of precious metal.

3. Regulations.

3.— (1) The Minister may make regulations in relation to any matter referred to in this Act as prescribed or to be prescribed.

(2) F13[Subject tosection 24B(5), every regulation] or order (other than an order under section 1 or 6) made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.

(3) The power to make regulations under this section includes the power to make provision in such regulations to give effect to—

(a) a provision of the treaties of the European Communities, or

(b) an act adopted by an institution of those Communities which regulates any of the matters to which this Act applies.

4. Repeals.

4.— (1) Each enactment specified in Schedule 2 is repealed to the extent specified in column (3) of that Schedule.

(2) Section 20(5)(b) of the National Standards Authority of Ireland Act 1996 is amended by deleting “the Merchandise Marks Acts 1887 to 1978, and”.

(3) The following are revoked:

(a) the Prices (Stabilisation of Profit Margins of Retailers of Motor Cars) Order 1984 (S.I. No. 223 of 1984);

(b) the Consumer Information (Diesel and Petrol) (Reduction in Retail Price) Order 1997 (S.I. No. 179 of 1997).

5. Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of monies provided by the Oireachtas.

PART 2 National Consumer Agency

Chapter 1

6. Establishment day.

6.— F14[…]

7. Establishment of Agency.

7.— F15[…]

8. Functions of Agency.

8.— F16[…]

8A. F17[Supplementary powers of Agency with respect to carrying out certain responsibilities.

8A.—F18[…]]

9. Review of legislation.

9.— F19[…]

10. Membership of Agency.

10.— F20[…]

11. Chairperson of Agency.

11.— F21[…]

12. Meetings and procedures of Agency.

12.— F22[…]

13. Committees.

13.— F23[…]

14. Chief executive.

14.— F24[…]

15. Functions of chief executive.

15.— F25[…]

16. Attendance of chief executive before Committee of Public Accounts.

16.— F26[…]

17. Attendance of chief executive before other Oireachtas Committees.

17.— F27[…]

18. Membership of either House of the Oireachtas, European Parliament or local authority.

18.— F28[…]

19. Indemnity for members of Agency.

19.— F29[…]

20. Strategy statement and work programme of Agency.

20.—F30[…]

21. Provision for co-operation between Agency and certain prescribed bodies.

21.— F31[…]

22. Reports and information to Minister.

22.—F32[…]

23. Accounts and audits.

23.— F33[…]

24. Advances by Minister to Agency.

24.— F34[…]

24A. F35[Annual estimate of income for certain purposes.

24A.—At least one month before the start of each financial year the Agency shall prepare, and shall submit to the Minister and the Minister for Finance, a statement of the expenditure required during the financial year for the purposes of the functions referred to inF36[section 10(3)(j) of the Competition and Consumer Protection Act 2014].]

24B. F35[Power to impose levies.

24B.—(1) The Agency may make regulations prescribing levies to be paid by persons who are subject to regulation under the designated enactments and designated statutory instruments (within the respective meanings given by theCentral Bank Act 1942).

(2) A levy prescribed undersubsection (1)shall relate only to the Agency’s performance of its functions referred to inF38[section 10(3)(j) of the Competition and Consumer Protection Act 2014].

(3) In particular, regulations undersubsection (1)may provide for any of the following matters:

(a) the activities, services or other matters for which specified kinds of levies are payable;

(b) the persons, or classes of persons, who are required to pay specified kinds of levies;

(c) the amounts of specified kinds of levies;

(d) the periods for which, or the dates by which, specified levies are to be paid to the Agency;

(e) penalties that are payable by a person who fails to pay a levy on time;

(f) the keeping of records, and the making of returns to the Agency, by persons who are liable to pay a specified levy;

(g) the collection and recovery of levies.

(4) Regulations made under this section do not take effect until approved by the Minister with the consent of the Minister for Finance.

(5)Section 3(2)does not apply to regulations made undersubsection (1).

(6) The Agency may refund the whole or a part of a levy paid or payable under regulations in force under this section.

(7) The Agency may amend or revoke a regulation made under this section.

(8) An amendment or revocation of regulations made under this section does not take effect until approved by the Minister with the consent of the Minister for Finance.

(9) The Agency may, by proceedings in a court of competent jurisdiction, recover as a debt an amount of levy payable under regulations in force under this section.]

24C. F35[Surplus or deficiency in certain income of Agency during financial year.

24C.—(1) If the total sum received by the Agency on account of levies prescribed undersection 24Bduring a financial year is greater than the Agency’s expenditure on the performance of its functions referred to inF40[section 10(3)(j) of the Competition and Consumer Protection Act 2014]during that financial year, the Agency—

(a) shall apply the surplus to the performance of those functions and the exercise of those powers in the following financial year, and

(b) shall reduce the levies prescribed in relation to the latter financial year accordingly.

(2) If the sum received by the Agency on account of levies prescribed undersection 24Bduring a financial year is less than the Agency’s expenditure on the performance of its functions referred to inF40[section 10(3)(j) of the Competition and Consumer Protection Act 2014]during that financial year, the Agency may prescribe levies in relation to the following financial year sufficient to—

(a) make good the deficiency, and

(b) ensure that the sum received by the Agency on account of such levies during the following financial year fully covers the performance of those functions during both those financial years.]

24D. F35[Arrangements in relation to collection of levies.

24D.—(1) The Agency may enter into an arrangement with a prescribed body in relation to the collection of a levy.

(2) An arrangement referred to insubsection (1)is to be for the purpose of enabling the Agency or prescribed body to collect the relevant levy from each person or body obliged to pay it and pay the collected levy to the entity entitled to receive it.

(3) An arrangement referred to insubsection (1)shall provide for the costs associated with the collection of the levy concerned to be met by the entity entitled to receive the levy.

(4) Nothing in this section affects any other power of the Agency to enter into an arrangement for the collection of levies.

(5) In this section—

"levy" means a levy imposed undersection 24Bor any other enactment;

"prescribed body" means the following:

(a) the Pensions Board;

(b) the Financial Services Ombudsman;

(c) the Central Bank of Ireland;

(d) any other body prescribed by the Minister by regulations made for the purposes of this section.]

24E. F35[Accounting for levies.

24E.—In its annual report and annual accounts, the Agency shall include statements of—

(a) the amounts collected by way of levies undersection 24B, and

(b) how those amounts were expended.]

24F. F43[Arrangements in relation to the collection of information relevant to levy collection

24F.—(1) The Commission may, for the purpose of obtaining any information which may be required in relation to the calculation of levies to be imposed undersection 24Brequire persons who are subject to such levies to provide the Commission within such reasonable period as the Commission may determine, with such information as the Commission may reasonably require in relation to the calculation of the amounts of the said levies.

(2) A person who—

(a) without reasonable excuse, fails to comply with a requirement under this section, or

(b) in purported compliance with such a requirement provides information that he or she knows to be false or misleading in a material respect,

commits an offence and is liable on summary conviction to the fines and penalties provided insection 79.]

24G. F44[Arrangements for the secondment of certain employees

24G.—(1) In this section—

"Bank" means the Central Bank of Ireland;

"secondee" means an employee seconded from the Bank to the Commission under the arrangements referred to in subsection (2).

(2) The Bank and the Commission may make arrangements for the secondment of employees from the Bank to the Commission for the purpose of carrying out the functions specified insection 10(3)(j) of the Competition and Consumer Protection Act 2014.

(3) The length of any secondment period or extension to an existing secondment period shall be agreed by the chairperson of the Commission, the Governor of the Bank and the employee of the Bank.

(4) Subject tosubsection (6), a secondee may not later than 2 years after the establishment day elect to become a member of the staff of the Commission.

(5) A secondee may continue on secondment to the Commission for as long as the chairperson of the Commission and the Governor of the Bank consent. A secondee who continues on secondment without electing to become a member of staff of the Commission continues to be an employee of the Bank and his or her terms of employment (including any term conferring a right to an increase in remuneration) continue to be those applicable to his or her employment by the Bank.

(6) An election undersubsection (4)to become a member of staff of the Commission is subject to the consent of—

(i) the chairperson of the Commission,

(ii) the Governor of the Bank,

(iii) the Minister for Public Expenditure and Reform, and

(iv) the Minister for Jobs, Enterprise and Innovation,

and shall take effect immediately after the latest of those consents is given.

(7) If a secondee elects to become a member of staff of the Commission, the terms and conditions relating to remuneration by the Commission at the time the election takes effect shall not be less favourable than the terms and conditions relating to remuneration at the time of his or her employment by the Bank (subject to any provision in any enactment).

(8) If a person’s employment is transferred under this section, the person’s previous service with the Bank is to be counted as service for the purposes of, but subject to any exceptions or exclusions in, the following Acts:

(a) the Redundancy Payments Acts 1967 to 2012;

(b) theProtection of Employees (Part-Time Work) Act 2001;

(c) theProtection of Employees (Fixed-Term Work) Act 2003;

(d) theOrganisation of Working Time Act 1997;

(e) the Terms of Employment (Information) Acts 1994 to 2012;

(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;

(g) the Unfair Dismissals Acts 1977 to 2007;

(h) the Maternity Protection Acts 1994 and 2004;

(i) the Parental Leave Acts 1998 and 2006;

(j) the Adoptive Leave Acts 1995 and 2005;

(k) theCarer’s Leave Act 2001.]

25. Disclosure of interests.

25.— F45[…]

26. Power to enter into contracts and to engage consultants and advisers.

26.—F46[…]

27. Premises of Agency.

27.— F47[…]

28. Seal of Agency.

28.— F48[…]

29. Power to borrow.

29.— F49[…]

30. Authorised officers of Agency.

30.— F50[…]

31. Disclosure of information relating to offences.

31.— F51[…]

32. Prohibition on unauthorised disclosure of information.

32.— F52[…]

33. Amendment of Freedom of Information Act 1997.

33.— F53[…]

Chapter 2

34. Staffing.

34.— F54[…]

35. Transfer of employment of certain persons to Agency.

35.— F55[…]

36. Superannuation.

36.— F56[…]

Chapter 3

37. Transfer of functions to Agency.

37.— F57[…]

38. Preservation of existing contracts.

38.— F58[…]

39. Transfer of assets and liabilities.

39.— F59[…]

40. References in certain other enactments to Director or Office of Director.

40.— F60[…]

PART 3 Commercial Practices

Chapter 1

41. General prohibition on unfair commercial practices.

41.— (1) A trader shall not engage in an unfair commercial practice.

(2) A commercial practice is unfair if it—

(a) is contrary to one or both of the following (the requirements of professional diligence):

(i) the general principle of good faith in the trader’s field of activity;

(ii) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers,

and

(b) would be likely to—

(i) cause appreciable impairment of the average consumer’s ability to make an informed choice in relation to the product concerned, and

(ii) cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(3) In determining whether a commercial practice is unfair under subsection (2), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

F61[(4) A trader who continues to engage in a commercial practice that has been found to be unfair by a court under this section commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided inChapter 4ofPart 5.]

Chapter 2

42. General prohibition on misleading commercial practices.

42.— (1) A trader shall not engage in a misleading commercial practice.

(2) Without prejudice to the amendments of the Hallmarking Act 1981 made by section 99, sections 43 to 46 specify the various circumstances in which a commercial practice is misleading.

43. Misleading: false, misleading or deceptive information.

43.— (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) A commercial practice is misleading if it would be likely to cause the average consumer to be deceived or misled in relation to any matter set out in subsection (3) and to make a transactional decision that the average consumer would not otherwise make.

(3) The following matters are set out for the purposes of subsections (1) and (2):

(a) the existence or nature of a product;

(b) the main characteristics of a product, including, without limitation, any of the following:

(i) its geographical origin or commercial origin;

(ii) its availability, including, without limitation, its availability at a particular time or place or at a particular price;

(iii) its quantity, weight or volume;

(iv) its benefits or fitness for purpose;

(v) the results to be expected from it;

(vi) the risks it presents to consumers;

(vii) its usage or prior history;

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

(ix) the specifications of the product, including, without limitation, the grade, standard, style, status or model of the product;

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

(xi) the handling of consumer complaints in relation to the product;

(xii) the method or date of—

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

(II) in the case of goods, the product’s manufacture;

(xiii) the results and material features of tests or checks carried out on the product;

(xiv) 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 or rights of the trader, including, without limitation, 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 process;

(j) the legal rights of a consumer (whether contractual or otherwise) or matters respecting when, how or in what circumstances those rights may be exercised.

(4) If the commercial practice in subsection (2) involves the provision of information, it is not a defence in any proceeding to show that the information is factually correct.

(5) In determining whether a commercial practice under subsection (1) or (2) is misleading, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

(6) Without limiting subsection (5)—

(a) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product was previously offered at a different price or at a particular price, consideration shall be given to whether the product was previously offered openly and in good faith at that price and at the same place for a reasonable period of time before the representation was made, and

(b) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product is being offered by a trader at or below a price recommended by the manufacturer, producer or supplier of the product (other than the trader), consideration shall be given to whether that recommended price was one recommended in good faith by that manufacturer, producer or supplier.

(7) In determining the geographical origin of goods the manufacture or production of which involves more than one country, consideration shall be given to where the goods underwent their last substantial and economically justified processing or working (in a place equipped for that purpose), resulting in the manufacture of new goods or representing an important stage of the manufacture or production.

44. Misleading: competitor or product confusion in marketing or advertising.

44.— (1) A commercial practice involving marketing or advertising is misleading if it would be likely to cause the average consumer—

(a) to confuse—

(i) a competitor’s product with the trader’s product, or

(ii) a competitor’s trade name, trade mark or some other distinguishing feature or mark with that of the trader,

and

(b) to make a transactional decision that the average consumer would not otherwise make.

(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

44A. F62[Misleading: marketing of goods as identical where significantly different.

44A.—(1) A commercial practice is misleading if—

(a) unless justified by legitimate and objective factors, it involves any marketing of goods in a Member State as being identical to goods marketed in other Member States where the goods have significantly different composition or characteristics, and

(b) the marketing would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) In determining whether a commercial practice is misleading undersubsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

45. Misleading: non-compliance with commitment under code of practice by which trader is bound.

45.— (1) A commercial practice is misleading if—

(a) it involves a representation that the trader abides, or is bound, by a code of practice,

(b) the representation referred to in paragraph (a) would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make, and

(c) the trader fails to comply with a firm commitment in that code of practice.

(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

(3) For the purposes of this section, a firm commitment in a code of practice is one that is not merely aspirational but is capable of being verified.

46. Misleading: withholding, omitting or concealing material information.

46.— (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision (“material information”) and such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) A commercial practice is misleading if—

(a) the trader—

(i) provides material information referred to in subsection (1) in a manner that is unclear, unintelligible, ambiguous or untimely, or

(ii) fails to identify the commercial intent of the practice (if such intent is not already apparent from the context),

and

(b) such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(3) If a commercial practice is or includes an invitation to purchase, each of the following constitutes material information for the purposes of this section, unless already apparent to the consumer in the context of the commercial practice:

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(b) the geographical address of the trader, the identity of the trader (such as his or her trading name) and, if the trader is acting in a consumer transaction as an agent of another trader, the geographical address and the identity of that other trader;

(c) the price of the product (inclusive of taxes) or, if the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated;

(d) any freight, delivery or postal charges that apply in relation to the product or, if such charges cannot reasonably be calculated in advance, a statement of the fact that such charges will apply and be payable by the consumer;

F63[(e) the arrangements for payment, delivery and performance if such arrangements do not meet or accord with—

(i) the standard of skill and care that the trader may reasonably be expected to exercise in respect of consumers, or

(ii) the general principle of good faith in the trader’s field of activity;]

(f) if applicable, the legal rights of a consumer (whether contractual or otherwise) to withdraw from or cancel the consumer transaction.

F64[(g) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.]

F64[(3A) (a) Where consumers are provided with the option of searching for products offered by different traders or consumers on the basis of a query in the form of a keyword, phrase or other input (and irrespective of where transactions are ultimately concluded) general information relating to—

(i) the main parameters determining the ranking of products presented to a consumer as a result of the search query, and

(ii) the importance of those parameters relative to other parameters,

that is made available in a specific section of the online interface directly and easily accessible from the page where the query results are presented shall be treated as material information for the purposes of this section.

(b)Paragraph (a)does not apply to any person who provides or offers to provide an online search engine to consumers.

(3B) Where a trader provides access to reviews by consumers of products, information in relation to whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the products shall be treated as material information for the purposes of this section.]

(4) The material information set out in F63[subsections (3)to(3B)] is in addition to and not instead of any other information that the trader is required by law to provide to a consumer, including, without limitation, any information required to be provided by regulations under this Act.

(5) In determining whether a commercial practice is misleading under this section, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances, including—

(a) the space or time available in any communications medium used, and

(b) any measures taken by the trader to make the material information available to consumers by other means.

47. Offence: misleading commercial practices.

47.— A trader who engages in any misleading commercial practice described in section 43(1) or (2)F65[,44(1),44A,45(1)or46(1)or(2)] commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5.

48. Prohibition on surcharges where one method of payment chosen in preference to another.

48.— (1) In this section—

“cash” means cash that is legal tender;

“relevant method” , in relation to payment, means each of the following methods of payment—

(a) cash,

(b) credit card,

(c) direct debit,

(d) any other method or methods of payment prescribed by the Minister.

(2) In this section a reference to a representation includes a reference to a representation made at any stage up to the time the trader accepts payment in respect of the product concerned.

(3) Where—

(a) a trader makes a representation that the trader will accept payment in respect of a product by any one of 2 or more different relevant methods, or

(b) it is the practice of a trader to accept payment in respect of a product by different relevant methods,

the trader shall not impose an additional charge on any person by reason of the person’s making payment in respect of the product by one of the relevant methods (to which the foregoing representation relates or as regards which the foregoing practice exists) as distinct from another of them.

(4) For the purposes of subsection (3)—

(a) without limiting any of the other means by which that subsection may be contravened, a trader shall be deemed to impose an additional charge, by reason of the person concerned making payment as mentioned in that subsection, if the price charged by the trader in respect of the product concerned is, where one of the relevant methods of payment is used by that person, greater than the price that would be so charged were that person to use another of them,

(b) if the representation or practice referred to in that subsection relates not only to relevant methods of payment but to one or more other methods of payment as well, that fact is immaterial, and

(c) it is immaterial that the trader can show that any expenses incurred by the trader in accepting payment by one of the relevant methods are greater than those incurred by the trader in accepting payment by another of them.

(5) A trader who contravenes subsection (3) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

(6) In proceedings for an offence under this section, where evidence is given that on a particular occasion the defendant accepted payment in respect of the product concerned by a relevant method which was different from that which the defendant accepted in respect of the product on another occasion in the period of 12 months preceding the first-mentioned occasion (and that previous method is also a relevant method), then it shall be presumed, until the contrary is proved, that a practice existed on the part of the defendant to accept payment in respect of the product by those foregoing methods.

49. Requirement that surcharge (where otherwise permissible) be stated as part of price.

49.— (1) Where it is the practice of a trader to accept payment in respect of a product—

(a) by only one relevant method and to impose a charge on a person for the person’s making payment in respect of the product by that method, or

(b) by different relevant methods and to impose on a person the same charge for the person’s making payment in respect of the product by any of those methods,

the trader shall ensure that any representation made by the trader, or on the trader’s behalf, in relation to the price payable in respect of the product, states clearly that price as a single amount inclusive of the foregoing charge.

(2) For the purposes of subsection (1), it is immaterial that the trader also accepts payment in respect of the product concerned by one or more methods of payment that are not relevant methods of payment and the reference in that subsection to the practice of a trader to accept payment in respect of a product by only one relevant method shall be read accordingly.

(3) A trader who contravenes subsection (1) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

(4) In a case falling within paragraph (a) or (b) of subsection (1), nothing in that subsection prevents the inclusion in any representation referred to in that subsection of—

(a) an indication that the single price stated is inclusive of a charge for making payment by the method concerned or, as the case may be, any of the methods concerned, or

(b) an indication of the amount of such charge.

(5) In this section ‘relevant method’, in relation to payment, has the same meaning as it has in section 48.

50. Consumer information regulations.

50.— (1) Subject to subsection (5), if the Minister considers it to be in the interest of consumers to have a product, or a class or type of product, marked with or accompanied by any information (or both), the Minister may make regulations—

(a) prescribing the product or class or type of product,

(b) prescribing—

(i) any stamps, marks, tags and labels for use on those products and the manner of their use, or

(ii) any information to accompany those products when they are supplied to consumers by traders, or

(iii) the matters referred to in both of the foregoing subparagraphs,

(c) requiring traders who supply a prescribed product, or a product of a prescribed class or type, to—

(i) stamp, mark, tag or label them in accordance with regulations made under paragraph (b)(i), or

(ii) have prescribed information under paragraph (b)(ii) accompany those products in the manner and form specified in the regulations, or

(iii) do the things referred to in both of the foregoing subparagraphs,

and

(d) regulating or prohibiting the supply of a prescribed product, or a product of a prescribed class or type, if any regulation under paragraph (b) or (c) is not complied with.

(2) Subject to subsection (5), if the Minister considers it to be in the interest of consumers that advertisements for a product, or a class or type of product, contain or refer to any information relating to those products (or do both those things), the Minister may make regulations—

(a) prescribing the product, or class or type of product, and that information, and

(b) requiring traders who market or advertise those products to do either or both of the following, as the Minister considers necessary or appropriate:

(i) include that information in their advertisements and to do so in the manner and form specified in the regulations;

(ii) specify in their advertisements the means by which that information may be obtained by a consumer.

(3) The Minister may make different regulations under this section for—

(a) different classes or types of products or traders,

(b) different classes or types of advertisements,

(c) different circumstances, and

(d) different geographical areas of the State.

(4) A regulation made under this section may apply to the whole State or to a specified geographical area of the State.

(5) The Minister may not make a regulation under this section unless the Minister is satisfied that in the context—

(a) the average consumer would need the stamp, mark, tag, label or information in order to make an informed transactional decision (“material information”), and

(b) if such material information was withheld, omitted or concealed, it would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(6) Subsection (5) does not apply in respect of regulations that may be made under subsection (1) relating to indications of the standard of fineness of articles of precious metal.

51. Offences: contravening consumer information regulations.

51.— (1) A trader who supplies a product in contravention of a regulation under section 50(1) commits an offence.

(2) If an advertisement fails to comply with any requirement of a regulation under section 50(2), any trader who publishes the advertisement or causes it to be published commits an offence.

(3) A trader who commits an offence under subsection (1) or (2) is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

Chapter 3

52. General prohibition on aggressive commercial practices.

52.— A trader shall not engage in an aggressive commercial practice.

53. Aggressive commercial practices.

53.— (1) A commercial practice is aggressive if by harassment, coercion or undue influence it would be likely to—

(a) cause significant impairment of the average consumer’s freedom of choice or conduct in relation to the product concerned, and

(b) cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) In determining whether a commercial practice is aggressive under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

(3) Without limiting subsection (2), in determining whether the commercial practice employs harassment, coercion or undue influence, the following shall be taken into account:

(a) the timing, location, nature or persistence of the commercial practice;

(b) the use of threatening or abusive language or behaviour by the trader;

(c) the exploitation of a consumer’s misfortune or circumstance when the trader is aware that the consumer’s judgment is impaired as a result of the gravity of the misfortune or circumstance, in order to influence the consumer’s transactional decision;

(d) the imposition of onerous or disproportionate non-contractual barriers by the trader when the consumer wishes to terminate the contract, exercise a contractual right or switch to another product or trader;

(e) the use of threats by the trader to—

(i) take action or initiate proceedings against the consumer when the trader has no legal basis for taking such action or initiating such proceedings, or

(ii) do something unlawful.

(4) In this section, “undue influence” means exploiting a position of power in relation to a consumer so as to apply pressure (without necessarily using or threatening to use physical force) in a way that significantly limits the consumer’s ability to make an informed choice in relation to the trader’s product.

54. Offence: aggressive commercial practices.

54.— A trader who engages in any aggressive commercial practice described in section 53(1) commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5.

Chapter 4

55. Prohibited commercial practices.

55.— (1) A trader shall not engage in any of the following commercial practices:

(a) a representation that the trader has an approval, authorisation or endorsement that the trader does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement;

(b) a representation that the trader is signatory to a code of practice, if the trader is not;

(c) a representation that the trader is about to cease trading or move premises, if the trader is not;

(d) a representation that a product has an approval, authorisation or endorsement that it does not have, or making such a representation when the trader is not in compliance with that approval, authorisation or endorsement;

(e) a representation that a product is able to facilitate winning in games of chance;

(f) a representation that supply of a product is legal, if it is not, or creating such an impression;

(g) a representation that a product is able to cure an illness, dysfunction or malformation, if it cannot;

(h) a representation that describes a product as “gratis”, “free”, “without charge” or anything similar, if a consumer has to pay anything other than the necessary and reasonable cost of—

(i) responding to the representation, and

(ii) collecting the product or having it delivered;

(i) a representation that a commercial practice of the trader has an approval, authorisation or endorsement that it does not have, or making such a representation when the trader is not in compliance with the approval, authorisation or endorsement;

(j) a representation that a code of practice has an approval or other endorsement that it does not have;

(k) displaying a quality, standard or trust mark or symbol, or some equivalent type of mark or symbol, without having obtained necessary authorisation to do so;

(l) making an invitation to purchase a product without disclosing the existence of any reasonable grounds the trader may have for believing that the trader will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising);

(m) making an invitation to purchase a product, then—

(i) demonstrating a defective sample of the product, or

(ii) refusing to—

(I) show or display the product to the consumer,

(II) take an order from the consumer for the product, or

(III) deliver the product to the consumer within a reasonable period of time,

with the intention of promoting a different product (bait and switch);

(n) making a false representation that a product is available only for a limited time, or on particular terms for a limited time, in order to elicit an immediate decision from a consumer, depriving the consumer of sufficient opportunity or time to make an informed choice in relation to the trader’s product;

F66[(o)undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the relevant State in which the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction;]

(p) making a representation or creating an impression that a right given to consumers under an enactment is a distinctive feature of the trader’s promotion or supply;

(q) using editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion, whether in the content itself or in any oral, written, visual or descriptive representation in the promotion;

F67[(qa) providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results;]

(r) making a representation to a consumer that is materially inaccurate in respect of the nature and extent of risk to the consumer’s personal security, or that of other members of the consumer’s household, if the consumer does not purchase the trader’s product;

(s) promoting a product (similar to that of another manufacturer) in such a manner as to deliberately mislead or deceive a consumer into thinking that the product is manufactured by that manufacturer, when it is not;

(t) making a representation to a consumer that is inaccurate to a material degree in respect of market conditions, or in respect of the possibility of finding a product, with the intention of inducing the consumer to purchase a product at conditions less favourable than normal market conditions;

(u) operating, running or promoting a competition or prize promotion without awarding the prizes described or reasonable equivalents;

(v) making a representation or creating an impression that a consumer has won or will win a prize or other equivalent benefit, if—

(i) there is no prize or equivalent benefit, or

(ii) in claiming the prize, the consumer has to make a payment or incur a loss;

(w) including in marketing material an invoice or any similar document seeking payment from a consumer for a product that the consumer has not ordered;

(x) making a representation or creating an impression that the trader—

(i) is not acting for purposes related to the trader’s trade, business or profession, when the trader is so acting, or

(ii) is acting as a consumer, when the trader is not;

(y) making a representation or creating an impression that after-supply service in relation to a product is available in a relevant State other than the one in which the product is supplied, when it is not so available.

F67[(z) reselling event tickets to consumers if the trader acquired them by using automated means to circumvent any limit on the number of tickets that a person may buy or any other rules applicable to the purchase of tickets;

(za) stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that the reviews originate from such consumers;

(zb) submitting or commissioning a person to submit false reviews or endorsements by consumers, or misrepresenting reviews or social endorsements by consumers, in order to promote products.]

(2) F68[…]

(3) A trader shall not engage in any of the following commercial practices:

(a) making a representation or creating an impression that a consumer cannot leave the premises until a contract is formed;

(b) failing to comply with a consumer’s request to leave the consumer’s residence or to not return (except in circumstances and to the extent justified or permitted by or under law in order to enforce a contractual obligation);

(c) persistently failing to comply with a consumer’s request to cease—

(i) communicating or initiating unwanted or unsolicited contact with, or

(ii) making or sending unwanted or unsolicited representations to,

the consumer by telephone, fax, email or any other electronic means or remote media (except in circumstances and to the extent justified or permitted by or under law in order to enforce a contractual obligation);

(d) in relation to a consumer’s claim on an insurance policy, doing either or both of the following:

(i) requiring the consumer to produce documents irrelevant to the validity of the claim;

(ii) persistently failing to respond to the consumer’s correspondence on the matter, in order to dissuade the consumer from exercising contractual rights in respect of that claim;

(e) including in an advertisement a direct exhortation to children to—

(i) purchase a product, or

(ii) persuade a parent or adult to purchase the product for them;

(f) in relation to any product that a consumer does not solicit, demanding that the consumer—

(i) make immediate or deferred payment for the product, or

(ii) return or keep the product safe;

(g) explicitly informing a consumer that if the consumer does not purchase a product, the trader’s job or livelihood will be in jeopardy.

(4) Subsection (3)(f) does not apply in respect of a product provided by a trader in accordance with Regulation 9(3) of the European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001 (S.I. No. 207 of 2001).

56. Offence: prohibited commercial practices.

56.— A trader who contravenes section 55(1) or (3) commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5.

57. Price display regulations.

57.— (1) If the Minister considers it to be in the interest of consumers, the Minister may make regulations requiring traders who supply a product, or a class or type of product, to display the price or charge to consumers of or for those products in any manner or form specified in the regulations.

(2) Without limiting subsection (1), a regulation under this section may—

(a) require prices or charges, or any combination of prices and charges, to be displayed in a single amount and inclusive of any charges, fees or taxes payable,

(b) require the price or charge display, or combined price and charge display, to state the range of prices or charges for the products, and

(c) prohibit the supply of the products to consumers at any price greater than the price or charge so displayed.

(3) The Minister may make different regulations under this section for different classes or types of products or traders.

(4) A regulation made under this section may apply to the whole State or to a prescribed geographical area of the State.

(5) This section is in addition to section 49 (respecting certain surcharges being stated as part of price).

58. Offence: price display contraventions.

58.— A trader who contravenes a regulation under section 57 commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

59. Offence: weighing facilities in grocery retail.

59.— (1) In this section, “grocery retailer” means a trader who is a retailer within the meaning of section 15A of the Competition Act 2002.

(2) A grocery retailer who offers food for sale to consumers by weight (other than food packed for sale by its manufacturer or producer or by the person who supplied it for sale) shall—

(a) provide a weighing scale, or weighing machine, that—

(i) is in a public and prominent position on the premises where that food is sold, and

(ii) subject to health and food safety considerations, is as near as reasonably possible to where that food is on display for sale,

and

(b) allow any person purchasing, or about to purchase, such food to weigh it or observe its weighing on the weighing scale or weighing machine in a manner that allows the person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment.

(3) A grocery retailer who contravenes subsection (2)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

60. Offence: preventing the reading of prices.

60.— (1) A trader shall not, without reasonable cause, prevent a person from, or obstruct or interfere with that person in—

(a) reading the prices displayed on or in relation to products supplied by the trader, or

(b) entering premises for purposes described in paragraph (a), if those premises are where the trader supplies those products.

(2) A trader who contravenes subsection (1)(a) or (b) commits an offence and is liable on summary conviction to the fines and penalties provided in Chapter 4 of Part 5.

61. State of emergency affecting supply of a product.

61.— (1) If the Government are of the opinion that abnormal circumstances prevail or are likely to prevail in relation to the supply of a product, the Government may by order (“emergency order”) declare that a state of emergency affecting the supply of that product exists.

(2) An emergency order may relate to one or more products and may define the products in such manner as the Government think fit.

(3) Unless the term of an emergency order is extended under subsection (4) or (5) or the order is revoked, an emergency order—

(a) remains in force for such term (not exceeding 6 months from the date that the order is made) that the Government think proper and specify in the order, and

(b) expires at the end of the last day of the term specified.

(4) Subject to subsection (5), if an emergency order is in force (“principal order”) and the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of a product to which the order relates, the Government may make one order (“extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the extension order is made.

(5) If during the extended term under subsection (4), the Government are of the opinion that abnormal circumstances continue to prevail in relation to the supply of the product to which the extension order relates, the Government may make only one more order (“final extension order”) in relation to that product extending the term of the principal order as it relates to that product for a period not exceeding 6 months from the date that the final extension order is made.

62. Power to fix maximum prices during state of emergency.

62.— (1) If an emergency order is in force in respect of a product under section 61, the Government may by order fix the maximum price at which that product may be supplied by a trader to consumers.

(2) An order under subsection (1) may—

(a) limit the application of the order to a class or type of the product,

(b) specify conditions by reference to which a maximum price is fixed and may fix different maximum prices in relation to different conditions,

(c) apply to the whole State, to a particular geographical area in the State, or to the supply of the product by a particular class or type of trader,

(d) fix a maximum price by specifying it or by specifying the manner in which it is to be calculated, and

(e) provide for any incidental or ancillary matter (including a requirement that the product to which the order relates shall be sold only in specified units of weight, measure or volume) that the Government consider necessary or expedient to give full effect to any provision of the order or to secure compliance with it.

(3) Unless previously revoked, an order made under this section expires on the expiration of the emergency order in respect of which it is made.

63. Offence: contravening maximum price orders.

63.— A trader who contravenes an order made under section 62 commits an offence and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 of Part 5.

F69[Chapter 5

63A. F70[Interpretation

63A.—In this Chapter—

"allowance" includes any discount, rebate, price concession or other advantage that is collateral to a sale or purchase of grocery goods but is not applied directly to the selling or purchase price;

"contravention notice" has the meaning assigned to it bysection 63D;

"grocery goods" means—

(a) any food or drink that is intended to be sold for human consumption and includes—

(i) any substance or thing sold or represented for use as food or drink for human consumption,

(ii) any substance or thing sold or represented for use as an additive, ingredient or processing aid in the preparation or production of food or drink for human consumption, and that is intended to be sold by a retailer as such an additive, ingredient or processing aid, and

(iii) intoxicating liquors,

but does not include food or drink served or supplied on the premises of a grocery goods undertaking in the course of providing catering, restaurant or take-away services or any similar hospitality services, or intoxicating liquor served or supplied for consumption on the premises of a grocery goods undertaking,

(b) household cleaning products,

(c) toiletries, and

(d) garden plants and garden plant bulbs;

"grocery goods undertaking" means an undertaking that is engaged for gain in the production, supply, distribution, wholesale or retail of grocery goods, whether or not the undertaking is engaged in the direct sale of those goods to the public;

"marketing costs" means costs relating to the marketing of grocery goods, including costs relating to—

(a) visits to a supplier by employees or representatives of a retailer or wholesaler directly involved in the purchase of grocery goods,

(b) artwork or packaging design,

(c) consumer or marketing research,

(d) marketing consequent upon or related to the opening or refurbishment of a retail or wholesale premises, and

(e) hospitality for the staff or representatives of a retailer or wholesaler,

in relation to the goods concerned;

"payment" means any compensation, consideration, allowance or inducement in any form (monetary or otherwise) and includes more favourable contractual terms;

"promotion" means an offer for sale at an introductory or a reduced retail price or with some other benefit to consumers that is intended to subsist for a specified period;

"relevant grocery goods undertaking" means a grocery goods undertaking engaged in the production, supply, distribution, wholesale or retail of grocery goods in the State, that has, or is a member of a group of related undertakings that has, an annual worldwide turnover of more than€50 million;

"related undertaking", in relation to a person (the first-mentioned person), means—

(a) if the first-mentioned person is a company, another company that is related within the meaning ofsection 140(5) of theCompanies Act 1990,

(b) a partnership of which the first-mentioned person is a member,

(c) if the businesses of the first-mentioned person and another person have been so carried on that the separate business of each of them, or a substantial part thereof, is not readily identifiable, that other person,

(d) if the decision as to how and by whom the businesses of the first- mentioned person and another person shall be managed can be made either by the same person or by the same group of persons acting in concert, that other person,

(e) a person who performs a specific and limited purpose by or in connection with the business of the first-mentioned person, or

(f) if provision is required to be made for the first-mentioned person and another person in any consolidated accounts compiled in accordance with the Seventh Council Directive 83/349/EEC of 13 June 1983^2, that other person;

"retailer" means a grocery goods undertaking that offers for sale, sells or resells grocery goods directly, or indirectly through franchise arrangements, to the public in the State;

"shrinkage" means losses that occur as a result of theft, loss or accounting error, after goods are delivered by a grocery goods undertaking to a retailer’s premises;

"supplier" means a grocery goods undertaking carrying on (or actively seeking to carry on) a business in the direct supply to any wholesaler or retailer of grocery goods for resale in the State, and includes any such undertaking whether located in the State or not;

"wastage" means grocery goods that become unfit for sale after their delivery by a grocery goods undertaking to a retailer or a wholesaler;

"wholesaler" means a grocery goods undertaking that purchases goods from a supplier for resale to a retailer.]

63B. F71[Regulations in respect of grocery goods undertakings

63B.—(1) Where the Minister considers it to be appropriate having regard to—

(a) the desirability of the promotion of competitive trade between grocery goods undertakings,

(b) the interests of consumers of grocery goods, in particular in relation to quality, value for money and access to choice,

(c) the importance of grocery goods undertakings conducting their trading relationships in good faith and in a fair, open and transparent manner,

(d) the importance of maintaining freedom of contract between grocery goods undertakings,

(e) the importance of providing grocery goods undertakings with reasonable certainty in respect of the risks and costs of trading,

(f) the economic importance to the State of the production, supply, distribution, wholesale and retail sectors in respect of grocery goods,

(g) the impact on the development and maintenance of strong, innovative, efficient and competitive production and supply bases in the grocery goods sector, and

(h) the impact on the development and maintenance of a competitive retail sector in respect of grocery goods,

he or she may, having consulted with the Commission and such other persons (including relevant grocery goods undertakings and other grocery goods undertakings) as he or she considers appropriate, make regulations in relation to particular aspects of the commercial relationships between relevant grocery goods undertakings and other grocery goods undertakings, in relation to the sale or supply of grocery goods.

(2) Notwithstanding the generality ofsubsection (1), regulations made under that subsection may—

(a) specify the form of contract to be entered into by a grocery goods undertaking for the sale or supply of grocery goods to, or the purchase or receipt of goods from, a relevant grocery goods undertaking,

(b) specify the ways in which a contract for the sale or supply of grocery goods referred to in paragraph (a) may be—

(i) varied,

(ii) terminated, or

(iii) renewed,

(c) specify the circumstances in which arrangements relating to the supply or delivery, including the frequency and timing in relation to the supply or delivery, of grocery goods may be varied,

(d) specify the manner in which certain terms and conditions are to be incorporated into contracts for the sale or supply of grocery goods referred to inparagraph (a), including terms and conditions in relation to—

(i) payment for grocery goods supplied to relevant grocery goods undertakings,

(ii) the ordering, supply, price, marketing and sale of goods on promotion and the duration of the promotion,

(iii) where a contract provides for payment arising from the negligence or fault of the supplier, the circumstances in which wastage that occurs at the premises of a relevant grocery goods undertaking is to be considered as due to the negligence or fault of the supplier, and

(iv) the circumstances and manner in which a relevant grocery goods undertaking may require a grocery goods undertaking to make any payment, either directly or indirectly, towards the resolution of a customer complaint,

(e) provide that a relevant grocery goods undertaking shall not enter into or renew any contract for the sale or supply of grocery goods referred to inparagraph (a)unless terms and conditions specified in regulations made under this section in relation to the following form part of the contract:

(i) the conditions under which a relevant grocery goods undertaking may, or may not, directly or indirectly require a supplier or retailer to obtain any goods or services from a third party from whom the relevant grocery goods undertaking receives payment for this arrangement;

(ii) the extent of the liability of a party to a contract for the sale or supply of grocery goods referred to inparagraph (a)for delays or failures in performance of the contract resulting from circumstances beyond the reasonable control of that party, and the actions that may or shall be taken by the parties to the contract in such circumstances,

(f) limit the circumstances in which a relevant grocery goods undertaking may seek payment from a grocery goods undertaking in respect of—

(i) shrinkage,

(ii) wastage, or

(iii) marketing costs,

(g) specify the circumstances in which a relevant grocery goods undertaking may, or may not, seek payment from a grocery goods undertaking for the purchase of grocery goods for resale by the relevant grocery goods undertaking from the grocery goods undertaking,

(h) provide for the manner in which forecasts for the supply of grocery goods are to be prepared and for the communication of the basis on which they are prepared,

(i) specify the circumstances in which a relevant grocery goods undertaking that is a retailer or wholesaler may, or may not, seek payment from a supplier to retain shelf space, or to secure better positioning on shelves, or an increase in the allocation of shelf space, for the grocery goods of that supplier,

(j) prohibit a relevant grocery goods undertaking from directly or indirectly compelling a grocery goods undertaking to make any payment or grant any allowance—

(i) in respect of a promotion of the grocery goods of a grocery goods undertaking in the premises of the relevant grocery goods undertaking,

(ii) for the advertising or display of the grocery goods of the grocery goods undertaking in the premises of the relevant grocery goods undertaking, or

(iii) to retain shelf space, or to secure better positioning on shelves, or an increase in the allocation of shelf space, for the grocery goods of that grocery goods undertaking,

(k) specify arrangements regarding promotions of grocery goods and related activities and the circumstances in which such arrangements shall be included in the contract for the sale or supply of grocery goods referred to inparagraph (a),

(l) provide for limitations on the obligation of grocery goods undertakings to participate in promotions by relevant grocery goods undertakings or similar activities in relation to grocery goods,

(m) prohibit a relevant grocery goods undertaking from requiring a grocery goods undertaking to obtain any goods or services from a third party from whom the relevant grocery goods undertaking receives payment for this arrangement,

(n) specify arrangements for the preparation by relevant grocery goods undertakings of an annual compliance report in respect of compliance with regulations made under this section, and for the submission of this report to the Commission,

(o) provide for the maintenance of records, and specify the records to be maintained, by relevant grocery goods undertakings in relation to the sale or supply of grocery goods to or from grocery goods undertakings,

(p) provide for the nature or type of information, documents or records that shall be maintained and kept by relevant grocery goods undertakings, and the length of time that such information, documents or records shall be kept,

(q) specify the manner and timeframe in which payments for grocery goods supplied to relevant grocery goods undertakings are to be made,

(r) provide for the designation and training of staff in relevant grocery goods undertakings to be responsible for compliance with any regulations made under this section and the dissemination of information in relation to the implementation of such regulations to other staff in the undertaking, and

(s) contain transitional provisions relating to the contracts for the sale or supply of grocery goods referred to in paragraph (a) to which the regulations, or different provisions of the regulations, will apply and any other relevant transitional provisions.

(3) Subject to this section, when making regulations under this section, the Minister may prescribe one or more classes (whether retailers, suppliers or wholesalers) of relevant grocery goods undertakings or grocery goods undertakings, or one or more classes of grocery goods, to which one or more of the regulations shall apply.

(4) Regulations under this section shall only apply to contracts entered into or renewed on or after the date on which the regulations come into operation.

(5) The Minister may, after he or she makes regulations under this section, and after consultation with the Commission and such other persons (including relevant grocery goods undertakings and other grocery goods undertakings) as he or she considers appropriate, prepare and make guidelines for the purpose of providing practical guidance as regards the operation of, and compliance with, this Chapter and any regulations made under this Chapter.

(6) Guidelines issued undersubsection (5)shall—

(a) be published by the Minister in such manner as he or she considers appropriate,

(b) be published by the Commission in such manner as it considers appropriate, and

(c) be made available for inspection by any person free of charge during ordinary office hours at the principal office of the Commission.]

63C. F72[Inspections and investigations by the Commission

63C.—(1) The Commission may from time to time carry out such and so many inspections of relevant grocery goods undertakings as it considers necessary to monitor compliance with regulations undersection 63B.

(2) In addition to carrying out inspections under subsection (1), the Commission may, where it has reasonable grounds to believe that a relevant grocery goods undertaking may be failing or may have failed to comply with regulations undersection 63B, investigate any complaints it receives in relation to such an alleged failure.

(3) The Commission may decide not to investigate a complaint referred to insubsection (2), or to discontinue an investigation of a complaint, on the grounds that—

(a) the complaint is frivolous or vexatious or was not made in good faith,

(b) the subject-matter of the complaint is trivial,

(c) the conduct complained of occurred at too remote a time to justify investigation, or

(d) there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of.

(4) The Commission may make preliminary inquiries for the purpose of deciding whether a complaint should be investigated and may in writing request the complainant to provide further written particulars of the complaint within a period specified by the Commission in the request.

(5) The Commission may decide not to continue to investigate a complaint if the complainant fails to comply with a request for further written particulars within the time specified in the request undersubsection (4).

(6) As soon as practicable after deciding not to investigate a complaint, or to discontinue an investigation of a complaint, the Commission shall inform the complainant in writing of the decision and the reasons for the decision.]

63D. F73[Contravention notices

63D.—(1) Where, on foot of an investigation carried out by the Commission undersection 63C, the Commission is of the opinion that a relevant grocery goods undertaking is contravening or has contravened any provision of regulations made undersection 63Bthat is stated in those regulations to be a penal provision, the Commission may instruct an authorised officer to serve, personally or by post, a notice (in this Chapter referred to as a "contravention notice") on the relevant grocery goods undertaking.

(2) A contravention notice shall—

(a) state that the Commission is of the opinion that the relevant grocery goods undertaking is contravening or has contravened regulations undersection 63B,

(b) state the reason for that opinion,

(c) identify the relevant penal provision of the regulations in respect of which that opinion is held,

(d) direct the relevant grocery goods undertaking to remedy the contravention by a date specified in the notice that shall not be earlier than the end of the period within which an appeal may be made undersubsection (6),

(e) include information regarding the making of an appeal undersubsection (6),

(f) include any other requirement that the Commission considers appropriate, in order to remedy the contravention, and

(g) be signed and dated by a person duly authorised by the Commission to do so.

(3) A contravention notice may include directions—

(a) as to the measures to be taken to remedy any contravention or matter to which the notice relates, or to otherwise comply with the notice, and

(b) to bring the notice to the attention of any person who may be affected by it.

(4) A relevant grocery goods undertaking on whom a contravention notice has been served who is of the opinion that the contravention notice has been complied with shall confirm in writing to the Commission that the matters referred to in the notice have been so remedied.

(5) Where a relevant grocery goods undertaking on whom a contravention notice has been served confirms in writing to the Commission in accordance withsubsection (4)that the matters referred to in the contravention notice have been remedied, the Commission shall, on being satisfied that the matters have been so remedied, not later than one month from receipt of such confirmation, give notice to the relevant grocery goods undertaking concerned of compliance with the contravention notice.

(6) A relevant grocery goods undertaking on which a contravention notice has been served may, within 21 days beginning on the day on which the notice is served, appeal against the notice to a judge of the Circuit Court in the circuit court area in which the notice was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

(7) A relevant grocery goods undertaking who appeals undersubsection (6)shall at the same time notify the Commission of the appeal and the grounds for the appeal and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

(8) Where an appeal undersubsection (6)is made, and the contravention notice is not cancelled, the notice as confirmed or varied shall take effect on the later of—

(a) the day next following the day on which the notice is confirmed or varied on appeal or the appeal is withdrawn, or

(b) the day specified in the notice.

(9) Where there is no appeal undersubsection (6), the contravention notice shall take effect on the later of—

(a) the end of the period for making an appeal, or

(b) the day specified in the notice.

(10) The Commission may—

(a) withdraw a contravention notice at any time, or

(b) where no appeal is made or pending undersubsection (6), extend the period specified undersubsection (2)(d).]

63E. F74[Enforcement

63E.—(1) A relevant grocery goods undertaking that contravenes a requirement in a contravention notice commits an offence and is liable—

(a) on summary conviction, to the fines and penalties provided for insection 79, or

(b) on conviction on indictment, to the fines and penalties provided for insection 79.

(2) A relevant grocery goods undertaking that, without reasonable excuse, contravenes a provision of regulations undersection 63Bthat is declared in the regulations to be a penal provision commits an offence and is liable—

(a) on summary conviction, to the fines and penalties provided for insection 79, or

(b) on conviction on indictment, to the fines and penalties provided for insection 79.

(3) Any person who is aggrieved in consequence of a relevant grocery goods undertaking’s failure to comply with any provision of regulations under section 63B or a contravention notice shall have a right of action under this subsection for relief against that relevant grocery goods undertaking.

(4) An action undersubsection (3)may be brought in the Circuit Court.