A new Dawn for UK Consumer Law: Countdown to consumer law changes under the DMCC in Spring 2025

In December we held a webinar with our Competition, Trade and Foreign Investment experts where we covered the consumer law and competition law changes under the DMCC. A link to the webinar and audio recordings can be found here: The UK's Digital Markets, Competition and Consumers Act 2024 webinar: key highlights.

Whilst we await confirmation on the  implementation dates for the specific consumer law elements of the DMCC, the new consumer enforcement regime and unfair commercial practices aspects of the DMCC are still expected to come into force in the Spring.  The new legal framework applying to subscription contracts is not expected earlier than Spring 2026.

In the meantime, there are three open consultations in relation to the consumer law changes, with not long left to respond for those who may be interested in doing so:

1. The CMA’s consultation and draft guidance on the unfair commercial practice provisions closes on 22 January 2025
2. The CMA’s consultation and draft guidance on the CMA’s role and powers related to consumer protection closes on 22 January 2025
3. The Government’s consultation on the implementation of the new subscription contracts regime closes on 10 February 2025

Here is a quick summary of the latest updates to be aware of in relation to the consultations.

DMA Draft guidance on the unfair commercial practice provisions

The DMCC will replace an update the existing unfair commercial practice (“UCP”) regime under the Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”).

The draft guidance issued with the CMA’s consultation shows how the UCP provisions may be applied. In particular, the draft guidance contains illustrative examples of unfair practices (such cold calls, ticket sales and prize draws) and summarises the changes made to the CPRs by the new regime (including the new provisions on drip pricing and fake reviews).

For businesses already familiar with the CPRs, this draft guidance reiterates that the changes made under the DMCC will make it easier to demonstrate that a trader has committed an unfair commercial practice, rather than making substantive legal changes to the regime. For example:

• The omission of material information from an invitation to purchase is now unfair regardless of whether it is likely to impact a consumer’s transactional decision
• In relation to aggressive practices, exploitation of vulnerable consumers no longer needs to take into account the gravity of the misfortune or the trader’s awareness of whether it might impact the consumer
• There are a number of changes to definitions, including “transactional decision”, “average consumer” and “vulnerable persons” that will impact how the UCP regime applies

CMA draft guidance on the CMA’s role and powers related to consumer protection

As we have previously commented, the CMA’s new enforcement powers include the ability to issue the following substantial fines (for example, up to 10% of annual global turnover for consumer law breaches). This guidance reflects the significant changes introduced by the DMCC for the CMA to be able to directly enforce the law against traders (in addition to the continuing court-based action).

We are also aware from a previous consultation on the CMA’s direct enforcement powers, that the CMA will likely determine the seriousness of the infringement based on the harm or risk of harm caused by the infringement and the level of culpability of the party is graded from high to low. When categorising an infringement, the CMA will consider factors such as the duration of the conduct, the total economic loss to consumers, the overall level of non-economic harm caused (such as stress caused to the consumer) and any impact on consumer decision making.

Government consultation in relation to subscription contracts

This Government consultation considers key changes that will impact the operations and practices of traders supplying goods, services and digital content to consumers under a subscription contract, including:

• Pre-contract information requirements
• Reminder notices
• Easy exit
• Initial cooling-off periods
• Renewal cooling-off periods

Whilst the new consumer protections in the DMCC are based on the existing Consumer Contracts (Information, Cancellation and Additional Charges) and Cancellation Regulations 2013 (CCRs), it is apparent that the Government is considering the specific challenges raised by subscription arrangements to pull together a regime that is far more reflective of these challenges, and providing more nuance in terms of how the rules will be applied.

A good example of this is around how returns and refunds will work for certain types of goods supplied. The Government is consulting on:

• The extent to which it is possible and practical for items to be returned in the same condition as they were received;
• Whether the items have been dispatched or not;
• How to fairly allocate responsibility and cost for returns; and
• Whether goods have certain characteristics which require additional or different rules.

The consultation also explores potential differences in relation to digital content. For example, whether there should be a waiver of a consumer’s right to cancel where they give express consent to supply during the initial cooling-off period (to tackle a consumer ‘binging and cancelling’).

What you can do now

Affected traders may wish to respond to the above consultations to provide practical insights of the challenges they face with consumers and compliance.

With the implementation of the consumer law changes now imminent, we recommend that consumer facing businesses start reviewing their consumer facing contract and materials as a matter of priority (See A new dawn for UK consumer law) and to address any deficiencies well ahead of time.