Commercial practices

Abstract

Seen through the consumer lens the law on commercial practices is deeply connected to the ‘right to information’ which plays a prominent role in consumer law from the 1962 declaration of President Kennedy onwards. I am using here the modern term ‘commercial practices’ which covers advertising and sales promotion and which has been introduced by the EU Unfair Commercial Practices Directive and I will not hide that I am looking at the ASEAN laws on Unfair Commercial Practices through European eyes, this means through the eyes of the most recent and most developed model of supranational legislation. It seems that the EU Unfair Commercial Practices Directive could turn into a success story similar to the Product Liability Directive. Roughly speaking, the distinction between advertising and sales promotion is the following: advertising measures carry some sort of information which shall entice the consumer to buy a product or a service. The concern of the consumer is that the information is ‘correct’ and ‘true’ and does not mislead them. Sales promotion instead focuses on marketing strategies such as doorstep selling, rebates, promotional sales, gifts, sale at a loss, tied promotion, three for the price of two, etc. Whilst there might be an informational element, however, contrary to advertising, the emphasis is not on information but on promotional activities. The consumer concern however might not only result from misleading advertising and sales promotion techniques, but much more generally from being treated ‘unfairly’. Until today and in particular in cross-cutting analyses which cover many different countries, cultures and traditions, ‘fairness’ or ‘deception’ remain relatively open legal concepts, which are more often than not tailored to the national particularities. The law on unfair commercial practices plays a prominent role in legal research and has attracted attention far beyond Europe.