Direct Marketing and the Consumer Protection Act

[fuad]

Hi all

I've noticed that the concept of Direct Marketing is widely covered in these forums (although I can't find the specific thread on the topic that sparked this post).

I am no expert on the Consumer Protection Act (CPA) but I do believe that the Act will have far reaching consequences, especially with regard to Direct Marketing. I know it's gonna clutter the post but see section 16 of the CPA below, especially subsection 3.

Consumer’s right to cooling-off period after direct marketing
16. (1) This section does not apply to a transaction if section 44 of the Electronic
Communications and Transactions Act applies to that transaction.
(2) To the extent that this section applies to a transaction or agreement, it is in addition
to and not in substitution for any right to rescind a transaction or agreement that may
otherwise exist in law between a supplier and a consumer.
(3)A consumer may rescind a transaction resulting from any direct marketing without
reason or penalty, by notice to the supplier in writing, or another recorded manner and
form, within five business days after the later of the date on which—
(a) the transaction or agreement was concluded; or
(b) the goods that were the subject of the transaction were delivered to the
consumer.

It appears from the above that in certain instances, where direct marketing is used, a customer can resile from a contract which s/he has enterred into within a 5 day period.

I am also no businessman but would imagine that such a provision coupled with the very common "buyers remorse" may become a nightmare to the salesperson who uses Direct Marketing as a tool.

Would be interesting to hear different opnions?

Thanks

[Dave A]

I can't find the specific thread on the topic that sparked this post.

Any of these threads on cooling off periods ring a bell?

Truth is there's been a cooling off period in place for quite a few aspects of business already. I suspect any concern for returns becomes a numbers game. A product or service that tends to attract a lot of returns will become more expensive to compensate for that risk. I effectively do much the same risk analysis when it comes to bad debt risk already.

Out of interest, how well defined is "direct marketing" in the Act from a strict legal perspective.

[fuad]

definition of direct marketing

Hi DaveA

See below, the definition of Direct Marketing in the CPA

‘‘direct marketing’’ means to approach a person, either in person or by mail or
electronic communication, for the direct or indirect purpose of—
(a) promoting or offering to supply, in the ordinary course of business, any goods
or services to the person; or
(b) requesting the person to make a donation of any kind for any reason;

It will be interesting to see the case law develop around this definition which seems to be very broad.

[IanF]

If I read the definition correctly the one key word is "approach". So if you are contacted via google search would this be considered an approach? The other thing is if you custom make the customer items like business cards, which you can't resell if the customer changes his mind, then this isn't covered by the act.
I upset a lot of customers when I insist they read their pricelists line by line as they know the correct prices not us.

[Dave A]

My thought is along similar lines to Ian.

Example 1.
An estate agent sends an instruction form to us to carry out the required inspection/test for a property sale. As a matter of course we approach the seller for confirmation and to finalise details. Sometimes the seller has instructed the agent to contact us and sometimes not. We do the contact to make a direct contract between us and the party who ultimately is footing the bill. (It can get so messy when the contract trail is via third parties).

So would the client be able to invoke the 5 day cooling off period because our call is deemed "direct marketing?"