Part 3: Enforcement of consumer protection law Chapter 2: Relevant infringements Section 148: Relevant infringements
The main underlying policy purpose is to define the scope of the Part 3 enforcement regimes. The act or omission must harm the collective interests of consumers (subsection (1), paragraph (a)). There must be harm or a risk of harm to a section of the public who are consumers, and this harm can be inferred from the accumulation of individual instances of harm.
	Subsection (5), paragraph (a) makes it clear that continuation or repetition of an act or omission could harm the collective interests of consumers, since the interests of future customers of the trader can be affected. For example, if a trader has not complied with the requirement to give information relating to the right to cancel an off-premises or distance contract under regulations 10(1) and 13(1) of, and paragraph (l) of Schedule 2 to, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, the court or the CMA could consider that this omission harms the collective interests of consumers, on the basis that repetition of this omission would harm the interests of potential future customers of the trader.
	Subsection (5), paragraph (b) makes it clear that a single act or omission is also capable of harming the collective interests of consumers. For example, a supplier who puts on to the market a single, large consignment of a beverage stated to be a healthy drink for a baby that is wholly unsuitable for this purpose.
	Subsection (2) sets out key definitions of "commercial practice", "trader" and "consumer". The main policy purpose for the use of the concept of "commercial practice" here is to limit the scope of the Part 3 regimes to those acts or omissions which amount to commercial practices, i.e. interactions between traders and consumers. This is because several of the enactments, obligations and rules of law within scope of Part 3 (see note for section 150 below) apply also to solely trader to trader interactions.
	The definition of commercial practice is broad and far reaching. A commercial practice can be derived from a single act or omission, depending on the relevant circumstances, as well as from repeated behaviour and a course of conduct (R v X Ltd [2013] EWCA Crim 818, at paragraph 22, Warwickshire County Council v Halfords Autocentres Ltd [2018] EWHC 3007 (admin), at paragraph 28).
	Subsection (2), paragraph (b) makes it clear that the definition includes an act or omission by a trader relating to a third party trader’s goods, services or digital content. Subsection (2), paragraph (c) establishes that an act or omission by a trader that enables private individuals (i.e. consumers) to sell products to that trader or to each other are also included in the definition of commercial practice. For example, this would bring the acts or omissions of an online marketplace that designs their website in such a way that the consumer goods advertised are misleadingly described into scope of the Part 3 enforcement regimes.
	Subsection (3) makes it clear that the definition includes acts or omissions which take place before, during or after promotion or supply (if any). For example, the acts or omissions of a debt collection agency that acquires claims derived from consumer credit agreements with consumers and seeks to recover these debts some considerable time after the original consumer credit agreements were concluded can amount to a commercial practice. An act or omission need not relate to a promotion or supply to or from consumers which actually occurs, in order to amount to a commercial practice. The concept is concerned with systems rather than individual transactions between a consumer and a business (Warwickshire County Council v Halfords Autocentres Ltd [2018] EWHC 3007 (admin), at paragraph 29).
	The definition of "consumer" makes it clear that a consumer is an individual, i.e. a natural person. Body corporates, including small and micro companies, are excluded from the definition of consumer. However, businesses may be protected under other legislation governing trader-to-trader transactions, e.g. the Business Protection from Misleading Marketing Regulations 2008 which prohibit advertising that is misleading to traders.
	The court or the CMA, as relevant, must consider whether the individual is acting for purposes wholly or mainly outside of their business to determine if they fit the definition of consumer. It is irrelevant whether the individual is supplying, or receiving, a good, service or digital content. The words "wholly or mainly" make it clear that: the individual is still a consumer when acting for dual purposes (a consumer purpose and a business purpose) as long as the consumer purpose is the main purpose. This means, for example, that a person who buys a kettle for their home, works from home one day a week and uses it on the days when working from home would still be a consumer. An individual who occasionally sells their unwanted and used clothes on eBay is also likely to be a consumer. Conversely, a sole trader who operates from a private dwelling and buys a printer of which 95% of the intended use is for the purposes of their business, is unlikely to be a consumer.
	An individual who supplies goods or services for mainly non-business purposes to a person who receives them for business purposes will still be a consumer. For example, an individual who sells their personal vinyl record collection to a second-hand record shop is likely to be a consumer.
	Further, an individual who acts for the purpose of a future business, which is not yet up and running, is likely to be a consumer. For example, an individual who participates in training to gain skills or a qualification with a view to supply goods or services for business purposes in the future is likely to be a consumer.
	Limb (a) of the definition of "trader" extends to any person who is acting for purposes relating to his business. Subsection (4), paragraph (a) makes it clear that acts or omissions "by" such a person may include acts or omissions done or made by a person acting in their name or on their behalf (for example, their agent, subcontractor or representative), where this liability is imposed by the enactment, obligation or rule of law in question or other rules of law of general application. For example, where a building company subcontracts part of a building contract, the court or the CMA could consider the actions or omissions of the subcontractor carried out on behalf of the building company to be acts done or omissions made by the building company itself.
	Limb (b) of the definition of trader makes it clear that a person (for example, an agent, subcontractor or representative) acting in the name of, or on behalf of, another for purposes relating to the other’s business, may also be held personally liable, where this liability is imposed by the enactment, obligation or rule of law in question or other rules of law of general application. It is irrelevant whether a person acting in the name of, or on behalf of, another is also acting for their own business or private purposes in relation to the same act or omission (subsection (4), paragraph (b)).