43.— (1) A commercial practice is misleading if it includes the provision of false information in relation to any matter set out in subsection (3) and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.

(2) A commercial practice is misleading if it would be likely to cause the average consumer to be deceived or misled in relation to any matter set out in subsection (3) and to make a transactional decision that the average consumer would not otherwise make.

(3) The following matters are set out for the purposes of subsections (1) and (2):

(a) the existence or nature of a product;

(b) the main characteristics of a product, including, without limitation, any of the following:

(i) its geographical origin or commercial origin;

(ii) its availability, including, without limitation, its availability at a particular time or place or at a particular price;

(iii) its quantity, weight or volume;

(iv) its benefits or fitness for purpose;

(v) the results to be expected from it;

(vi) the risks it presents to consumers;

(vii) its usage or prior history;

(viii) its composition, ingredients, components or accessories;

(ix) the specifications of the product, including, without limitation, the grade, standard, style, status or model of the product;

(x) the after-supply customer assistance available to consumers in relation to the product;

(xi) the handling of consumer complaints in relation to the product;

(xii) the method or date of—

(I) the product’s delivery, supply or provision, or

(II) in the case of goods, the product’s manufacture;

(xiii) the results and material features of tests or checks carried out on the product;

(xiv) in relation to a service, its execution or performance;

(c) the price of the product, the manner in which that price is calculated or the existence or nature of a specific price advantage;

(d) the need for any part, replacement, servicing or repair in relation to the product;

(e) the existence, extent or nature of any approval or sponsorship (direct or indirect) of the product by others;

(f) the nature, attributes or rights of the trader, including, without limitation, the following:

(i) the trader’s identity, qualifications, assets or status;

(ii) the trader’s affiliation or connection with others;

(iii) the existence, extent or nature of—

(I) any industrial, commercial or intellectual property rights the trader may have, or

(II) any award, distinction, approval or sponsorship (direct or indirect) the trader has or has received;

(g) the extent of the trader’s commitments;

(h) the trader’s motives for the commercial practice;

(i) the nature of the trader’s supply process;

(j) the legal rights of a consumer (whether contractual or otherwise) or matters respecting when, how or in what circumstances those rights may be exercised.

(4) If the commercial practice in subsection (2) involves the provision of information, it is not a defence in any proceeding to show that the information is factually correct.

(5) In determining whether a commercial practice under subsection (1) or (2) is misleading, the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.

(6) Without limiting subsection (5)—

(a) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product was previously offered at a different price or at a particular price, consideration shall be given to whether the product was previously offered openly and in good faith at that price and at the same place for a reasonable period of time before the representation was made, and

(b) if the commercial practice involves a representation or creates an impression (whether in advertising, marketing or otherwise) that a product is being offered by a trader at or below a price recommended by the manufacturer, producer or supplier of the product (other than the trader), consideration shall be given to whether that recommended price was one recommended in good faith by that manufacturer, producer or supplier.

(7) In determining the geographical origin of goods the manufacture or production of which involves more than one country, consideration shall be given to where the goods underwent their last substantial and economically justified processing or working (in a place equipped for that purpose), resulting in the manufacture of new goods or representing an important stage of the manufacture or production.