S.I. No. 134/1988:

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGULATIONS, 1988.

EUROPEAN COMMUNITIES (MISLEADING ADVERTISING) REGULATIONS, 1988.

I, ALBERT REYNOLDS, Minister for Industry and Commerce, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 84/450/EEC of 10 September, 1984(1), hereby make the following Regulations:

1. (1) These Regulations may be cited as the European Communities (Misleading Advertising) Regulations, 1988.

(2) These Regulations shall come into operation on the 27th day of June, 1988.

2. (1) In these Regulations:

"the Council Directive" means Council Directive No. 84/450/EEC of 10 September, 1984⁽¹⁾;

⁽¹⁾ O.J. No. L250/17,19.9.84.

"the Director" means the Director of Consumer Affairs and Fair Trade;

"functions" includes powers and duties.

(2) A word or expression that is used in these Regulations and is also used in the Council Directive has, unless the contrary intention appears, the meaning in these Regulations that it has in the Council Directive.

3. The Director, on a request being made to him in that behalf or on his own initiative, may request any person engaging or proposing to engage in any advertising which is misleading advertising to discontinue or refrain from such advertising.

4. (1) Any person, including the Director may, upon giving notice of the application to any person against whom the order the subject of the application is sought, apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication, or the further publication, of advertising the publication of which is misleading advertising.

(2) Where the Director has made a request under Regulation 3 of these Regulations and that request has not been complied with, the Director may apply to the High Court for, and may, at the discretion of that Court, be granted, an order prohibiting the publication, or the further publication, of advertising the publication of which is misleading advertising.

(3) An applicant for an order under paragraph (1) of this Regulation or the Director in the case of an application for an order under paragraph (2) of this Regulation shall not be required to prove--

(a) actual loss or damage, or

(b) recklessness or negligence on the part of the advertiser.

(4) With a view to eliminating the continuing effects of misleading advertising a court (in any proceedings in which it has made an order under Regulation 4 of these Regulations) may--

(a) require publication of its decision in full or in part and in such form as it deems adequate, and

(b) require the publication of a corrective statement.

(5) Where an application has been made to a court under paragraphs (1) or (2) of this Regulation--

(a) that court may order an advertiser to furnish evidence as to the accuracy of any factual claims made in any advertising, if taking into account the legitimate interests of the advertiser and any other party to the proceedings such requirement appears appropriate on the basis of circumstances of the particular case; and

(b) that court may deem any factual claim to be inaccurate if the evidence demanded in accordance with paragraph (a) of this Regulation is not furnished or is deemed insufficient.

(6) In the exercise of its discretion under paragraphs (1) and (2) of this Regulation a court shall take account of all the interests involved and in particular the public interest.

5. In determining whether or not advertising is misleading account shall be taken of all its features, and in particular of any information it contains concerning the matters set out in paragraphs (a) to (c) of Article 3 of the Council Directive.

6. (1) In this Regulation "authorised officer" means a whole-time officer of the Minister for Industry and Commerce authorised in writing by that Minister or the Director to exercise, for the purposes of these Regulations, the powers conferred on an authorised officer by this Regulation.

(2) Every authorised officer shall be furnished with a warrant of his appointment as an authorised officer stating that he is acting under these Regulations and, when exercising any power conferred on him by paragraph (3) of this Regulation, if requested to do so, produce the said warrant.

(3) An authorised officer may, for the purpose of obtaining information which may enable the Director discharge his functions under these Regulations, on production of his warrant of appointment as an authorised officer, if so required--

(a) at all reasonable times enter premises at which any trade or business or any activity in connection with a trade or business is carried on and inspect the premises and any goods on the premises and, on paying or making tender of payment therefor, take any of the goods,

(b) require any person who carries on such trade, business or activity and any person employed in connection therewith to produce to the authorised officer any books, documents or records relating to such trade, business or activity which are in that person's power or control and to give him such information as he may reasonably require in regard to any entries in any books, documents and records,

(c) inspect and take copies from such books, documents and records,

( d ) require any such person to give to the authorised officer any information the officer may require in regard to the persons carrying on such trade, business or activity (including, in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and of its committee or management or other controlling authority) or employed in connection therewith,

( e ) require any such person to give to the officer any other information which the officer may reasonably require in regard to such activity.

(4) A person who obstructs or impedes an authorised officer in the exercise of a power under this Regulation, or does not comply with a requirement under this Regulation shall be guilty of an offence.

(5) A person guilty of an offence under this Regulation shall be liable on summary conviction to a fine not exceeding £1,000.

(6) An offence under this Regulation may be prosecuted by the Director.

GIVEN under my Official Seal, this 23 day of June, 1988.

ALBERT REYNOLDS

Minister for Industry and Commerce.

EXPLANATORY NOTE

The purpose of these Regulations is to give effect to Council Directive 84/1450/EEC on the approximation of laws of the Member States relating to misleading advertising. The Regulations should be read together with the Directive.

The Regulations provide a legal means for the control of misleading advertising.