Part 4: Consumer rights and disputes Prohibition of unfair commercial practices Section 227: Misleading omissions
This section defines commercial practices that are misleading omissions. The section prohibits traders from omitting or hiding information, or providing it in an unclear (which includes, unintelligible and ambiguous) or untimely manner. The section ensures that consumers get from traders all the information they need to make informed decisions in an upfront, clear, and timely manner.
	For a commercial practice to be a misleading omission, it must meet two conditions: first, the practice must fall into subsection (1) by a) omitting material information, b) omitting information which the trader is required to give to the consumer under another enactment or c) failing to identify its commercial intent, and second the practice, is likely to cause the average consumer to take a transactional decision they would not otherwise have taken. Transactional decision is a broad concept covering both pre-purchase and post-purchasing decisions such as a decision about whether, how or on what terms to purchase, retain or dispose of a product. It includes decisions whether to do something, or not to do something. For example, it includes decisions whether to visit a shop, to click through a website, to exercise a cancellation right or to pay a debt as well as a decision to purchase a product or to enter a contract. It does not have to lead to a purchase. There does not need to be an actual transaction between the consumer and trader.
	Material information is the full information that the average consumer needs to have, given the context, to make an informed transactional decision.
	As indicated, a commercial practice also falls within this section if it omits information which the trader is required under any other enactment to give to the consumer as part of the practice or where a commercial practice does not identify its commercial intent. Examples of how commercial intent may be made clear include the presence of price, or a statement making it obvious that the practice is commercial. The context may also make clear that the intent is commercial - for example, information on a billboard that is obviously intended to market or advertise a product.
	Subsection (3) provides that when considering whether material information has been omitted, account must be taken of the means of communication and what that allows for, including any limitations that are the result of space or time constraints, as well as the steps taken by the trader to overcome those limitations. For example, a trader selling cereal bars advertises a ‘t-shirt for £1’ offer on the wrappers. The wrapper is too small to include all of the information on the various conditions that apply (such as restrictions on the availability of the t-shirts). The trader is less likely to commit a misleading omission if they include important information on the wrapper, and make clear on the wrapper that terms and conditions apply and provide details of where they can be found.
	Subsection (4) elaborates on the meaning of omitting information and clarifies that it applies when a trader provides material information in an unclear or untimely manner, or in a way that the consumer is unlikely to see, as well as when a trader fails to provide material information at all. The effect is that as well as considering how the words used in the commercial practice may be interpreted by the consumer, consideration also needs to be given to how the information is displayed, such as the font size used, the positioning and colour of text, and whether material information is sufficiently prominent. Examples of material information that a consumer is unlikely to see could include information provided only in the ‘small print’ terms and conditions, or which is only accessible by the consumer if they click on a hyperlink that could be missed or not opened.