Unfair commercial practices

The competition is unfair when the activity of a trader is achieved by the use of illegal procedures, contrary to commercial usage.

The methods which characterize unfair competition are multiple. Wheter they are acts or deeds contrary to the law and honest practices, they can be grouped into crimes, contraventions and/or civil wrongs.

“Exceptional offer, for only 24 hours!” or “Buy two products and you will receive one for free”. Every day we are bombarded by such messages trough written media, television, radio, on the street or subway, each one trying to make our lives easier, proposing best product or service. There is a whole industry of techniques for promoting and selling products with hundreds of specialized books and courses, which are trying to find the best way to reach consumers, many times through practices that are not the most fair.

The law analyzes two kinds of unfair commercial practices:

The competition is unfair when the activity of a trader is achieved by the use of illegal procedures, contrary to commercial usage.

The methods which characterize unfair competition are multiple. Wheter they are acts or deeds contrary to the law and honest practices, they can be grouped into crimes, contraventions and/or civil wrongs.

“Exceptional offer, for only 24 hours!” or “Buy two products and you will receive one for free”. Every day we are bombarded by such messages trough written media, television, radio, on the street or subway, each one trying to make our lives easier, proposing best product or service. There is a whole industry of techniques for promoting and selling products with hundreds of specialized books and courses, which are trying to find the best way to reach consumers, many times through practices that are not the most fair.

The law analyzes two kinds of unfair commercial practices:

• misleading, which is manifested by direct action (providing false information), or omission (no giving significant information) and
• aggressive, whose purpose is to compel us to buy. A commercial practice is regarded aggressive if, in the context of presentation of the facts and considering all of the circumstances, is limiting or may limit in a significant way the freedom of choice or behavior of the average consumer about the product, by harassment, coercion, including the use of physical force or undue influence, and therefore, determine or is susceptible to determine the consumer to take a transactional decision that otherwise would not be taken.

When they promote, sell or provide products, companies must provide clear informations that allow us to be informed when we buy something. Otherwise, their actions might be considered unfair.

Also, there is a “black list”, list which makes possible to identify business practices which are forbidden in all circumstances. If such a practice appears in the list, it is automatically considered illegal. Examples of incorrect practices:

• Publicity trap – Traders are not allowed to promote products or services at a very low price if the available stock is not enough.
• Fake free offers – Traders have to communicate the real price of goods and services they offer. They are not allowed to claim that they offer some additional services free of charge, as long as those services are already included in the normal price.
• Direct exhortation to children – Sellers have not the right to encourage children to ask their parents to buy certain products. Direct messages like “Buy this book right now” or “Tell your parents to buy this game” are forbidden.
• Fake curative properties – Every time a product is promoted fot its therapeutic values (heals allergies, stops the hair fall, helps in height loss, etc), you have the right to know if these claims have a scientific basis. In many cases they are not medically confirmed and, moreover, sounds too good to be true.
• Pyramidal systems – This is about promotional systems in which you must invest an amount of money to obtain benefits later. The problem is that these benefits are possible only if the system succeeds in attracting new participants. At one point, pyramidal systems collapse and the last entrants are losing their investements.
• Fake offers of prizes and gifts – Traders are not allowed to advertise to “free” prizes or gifts and then to ask you to pay to receive them. If you receive a letter or an e-mail which says “Congratulations, you have won a prize!”, we recommend you to treat it with caution, because you might be in front of an unfair business practice.
• Fake special advantages – Traders are not allowed to pretend that they give you special rights, as long as you benefit of rights according to the law.
• False use of limited offers – When a trader tells you that a certain offer is available for a limited period, he is probably trying to convince you to buy a product before you can make a clear opinion about it.
• Insistent and unwelcome offers – Based on the EU legislation, companies are not allowed to use the phone, fax, e-mail or any other means of distance selling to present you, in an insistant way, offers that you don’t want.
• Protecting vulnerable consumers – Traders are not allowed to use practices that involve exploitation of vulnerable consumers, such as children, sick people or dependent persons.
• Selling under pressure – Giving to consumer the impression that he can’t leave the trader’s headquarters until he signs an agreement.
• Aggressive sale away from business premises – Making personal visits to the consumer’s house and ignoring his request to leave or never come back.
• Emotional pressures – Explicit information of the consumer that if he doesn’t buy the product or service, the trader risks losing his job or livelihoods.

In order to stop and fight against unfair commercial practices, every person or authority can notify the National Authority for Consumers Protection or may initiate a legal action against traders who have commited or they might commit unfair commercial practices.

The law of combating unfair practices of traders with consumers is Law no. 363/2007, a law which it would be good to be known as well as possible, no matter if we represent companies or we are simply consumers. A better understanding of the messages we see all around us every day will give us a better vision of what marketing means and also, a better functioning of the market.