Konsumentombudsmannen v Ving Sverige AB (C-122/10)
Ving, a Swedish Travel Agency, inserted an advertisement in a Swedish newspaper offering trips to New York. The advertisement set out the "price from" figure and had various other details. The Swedish Consumer Ombudsman took action on the basis the advertisement was an "invitation to purchase" and should therefore have been accompanied by the mandatory information requirements of the Unfair Commercial Practices Directive.
The Directive was introduced into English law by way of the Consumer Protection from Unfair Trading Regulation 2008. Regulation 6(4) states that where a commercial practice is "an invitation to purchase", certain "material information" must be given (to avoid a "misleading omission"), including matters such as the main characteristics of the product, the identify of the trader, the price and the right of withdrawal or cancellation etc. An invitation to purchase is defined as "a commercial communication which indicates the characteristics of the product and the price.... which thereby enables the consumer to make a purchase".
The ECJ held that an invitation to purchase arises as soon as the information on the product advertised and its price are sufficient for the consumer to be able to make a transactional decision. There is no requirement that the consumers must actually be able to make the purchase at that time – i.e. there can be an invitation to purchase even though there is no order form or the purchase has to be made elsewhere. Again, an invitation to purchase can arise even though there is only a verbal or visual reference to a product, and that product is otherwise offered in a variety of forms – this is sufficient to indicate the products' characteristics within the meaning of the definition.
The ECJ did however hold that it is sufficient for a trader to give only some of the products characteristics, as long as it refers consumers to its website for additional characteristics and gives the "material information" on the website. Furthermore, it is also permissible to refer only to an entry level price, in that failure to provide additional charges etc is not in itself a misleading omission.
The ECJ's decision gives a much wider interpretation of "invitation to purchase" than is contained in OFT Guidance. This Guidance will presumably now be changed. In summary, any advertisement that refers to a product and a price is likely to be considered an invitation to purchase and must therefore meet the mandatory material information requirements under the Regulations. At least that information can be displayed on a website, rather than in the website itself, as long as users are referred to the website in the advertisement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.