The other DMCC consumer law changes no-one is talking about

Introduction 

On 6 April 2025, landmark new consumer protection provisions under the Digital Markets, Competition and Consumers Act 2024 (the “DMCC”) came into force, including those giving enhanced enforcement powers to the Competition and Markets Authority (the “CMA”) and provisions which protect consumers from unfair trading practices, which (mostly) replace the previous Consumer Protection from Unfair Trading Regulations 2008 (“CPUT”).

As well as the headline grabbing changes (see here for our previous articles on the consumer law provisions of the DMCC Act), the DMCC has made some other important updates to CPUT. In this article, we seek to shine a light on some of the more subtle changes and what the practical implications of those might be for consumer-facing businesses.

Misleading actions (section 227 DMCC)

One change which the DMCC has made relates to the unfair commercial practice of misleading actions. Previously, a misleading action had to relate to one of a detailed list of “matters” relevant to a transactional decision, whereas now the action just has to relate to “information relating to a product, trader or any other matter relevant to a transactional decision”. A “transactional decision” can be any number of actions (or inactions), from whether to click on an advertisement linking to product or service, through to whether to commit to purchase a product or service over any other option.

The scope of what is considered a misleading action has also been widened. Under CPUT, a misleading action was unfair if it contained false information and was therefore untruthful, whereas under the DMCC a commercial practice can be a misleading action if it concerns the “provision of false or misleading information” (emphasis added). These changes effectively make it easier for a regulator to take action in relation to misleading practices.

Aggressive practices (section 228 DMCC)

The offence relating to aggressive practices has also been updated so that it is no longer necessary to demonstrate that an aggressive practice has caused or is likely to cause “significant” impairment of the average consumer’s freedom of choice or conduct. Under the DMCC, it is sufficient to show that a practice uses harassment, coercion or undue influence and is likely to impact a consumer’s transactional decision, removing the hurdle for a regulator to show that there was “significant” impairment of the consumer’s freedom. This is now potentially a much lower bar for any regulator to allege aggressive practices.

Contravention of the requirements of professional diligence (section 229 DMCC)

“Professional diligence” is a general, catch-all obligation which regulators often seek to rely on when they don’t like the approach adopted by a business, but can’t point to a breach of any specific obligations elsewhere. From 6 April, it is no longer necessary to show that that a contravention of the requirements of professional diligence “materially distorts [or is likely to] the economic behaviour” of the average consumer such that it “appreciably impairs their ability to make an informed decision” thereby causing them to take a different transactional decision. Now it is sufficient to only show that it “is likely to cause the average consumer to take a transactional decision that the consumer would not have taken otherwise”, effectively lowering the threshold for a commercial practice in contravention of the requirements of professional diligence to be considered unfair.

This change should be of particular note to consumer-facing businesses as the unfair commercial practice concerning a contravention of the requirements of professional diligence is a wide-ranging concept which encapsulates all manner of commercial practices, and it is now even more malleable from a regulator’s perspective.

Omission of material information from an invitation to purchase (section 230 DMCC)

Another key difference in the DMCC is the removal of the transactional decision test in the context of omitting material information from an invitation to purchase (an invitation to purchase is essentially any consumer-facing communication which indicates the characteristics of a product and its price, for example, an advert). Whereas under CPUT it was necessary to prove that the omission of material information from an invitation to purchase caused a consumer to take a different transactional decision, under the DMCC,  the omission of material information from an invitation to purchase is now unfair regardless of whether it has (or is likely to have) any impact on a consumer’s transactional decision.

Section 230 also updates what is material information in respect of an invitation to purchase, including certain details about the trader or any other person that the trader is acting for, and information relating to the total price of the product and the presentation of that information relating to the price. For more information on the pricing aspects, see our update here.

This is a significant development insofar as any omission of material information from an invitation to purchase would now constitute an unfair commercial practice, whether that information would have had an impact on a consumer’s decision or not. This means that it is important that businesses understand: (i) what constitutes an invitation to purchase; and (ii) what information is considered material under the DMCC. 

Other changes

A number of the other changes of note are:

• The definition of “transactional decision” has been widened slightly. Previously the definition had been “any decision… concerning whether… to purchase” whilst now it is “any decision… relating to the purchase… of a product, including whether to purchase”.
• The definition of the “average consumer” has been updated and the DMCC makes clear that that the average consumer cannot be expected to know information that a trader hides from the consumer, even if that consumer might know the information from another source. So, under the DMCC the average consumer becomes even more of an intellectual construct (rather than a real consumer) as regulators can ignore the fact that certain information would be blindingly obvious to every real consumer in the UK.
• There have been a few updates to the definition of vulnerable persons (in the context of the “average consumer”), including the introduction of the concept of “situational vulnerability” whereby consumers may be vulnerable persons due to the circumstances they are in (alongside factors such as their health or age).

Comment

Although much of the DMCC’s consumer protection provisions are similar to those under CPUT, the DMCC has some key differences. Whilst some of these are clearly stated in the legislation, such as a number of new banned practices (including those relating to fake and misleading reviews) and the new rules specifically relating to subscription contracts (although these are not due to come into force until at least 2026), others are less obvious, such as where the definition of certain offences have been updated slightly, widening their scope.

It is important that affected businesses review their practices and ensure that they comply with the new provisions of the DMCC, particularly as, under the DMCC, the CMA now has the power to directly enforce breaches of consumer protection laws (including in relation to unfair commercial practices) and to impose substantial fines of up to 10% of a non-compliant business’ annual global turnover. The CMA is also able to impose enhanced consumer measures on businesses in breach of these obligations (which, for example, could include obligations to compensate affected consumers, with interest). For more information on the CMA’s enforcement powers and process, see here.

If your business is impacted by the DMCC’s consumer protection provisions or if you have any wider queries about the DMCC or other consumer protection law issues more generally, please get in touch with a member of our team.