To the so-called catalog 12 new black market practices are to be added, including: related to ecology – includes a draft amendment to the regulations on this matter. It also assumes, among others: expanding the list of actions that mislead the consumer.
This is a draft amendment to the Act on Counteracting Unfair Market Practices and the Act on Consumer Rights, which was published on the website of the Government Legislation Center on Monday.
As stated in the Regulatory Impact Assessment (IAS) for the project prepared by the Office of Competition and Consumer Protection, the Act of August 23, 2007 on counteracting unfair market practices is to expand the catalog of the so-called black market practices by 12 new ones, defined by EU Directive 2024/825.
12 new black market practices
Such practices include, for example, justified by greenhouse gas offsetting, claiming that a product has a neutral, limited or positive impact on the environment in terms of greenhouse gas emissions, making an environmental claim when the trader is unable to demonstrate “recognized high environmental performance relevant to the claim”, and making environmental claims in relation to the entire product or the trader's entire activity when they only concern a specific aspect of the product or a specific type of activity.
Another so-called Black practices to be added to the catalog include: presenting features resulting from requirements imposed on all products belonging to a given product category in the EU as a distinguishing feature of a given offer; concealing information from the consumer that the software update will have a negative impact on the functioning of goods with digital elements; presenting the goods as repairable when this is not the case, and inducing the consumer to replace or supplement the goods' consumables earlier than is necessary for technical reasons.
New concepts and definitions
Moreover – as described in the RIA – the project also assumes adding definitions of concepts such as, among others, to the Act of 23 August 2007 on counteracting unfair market practices. product, environmental claim, general environmental claim, sustainability label, durability, software update or functionality.
The proposed regulations also envisage extending the catalog of information that may be the subject of misleading practices when presenting a product to include: environmental or social features, aspects related to closed loop, including durability, repairability, and recyclability. Important information is also to be specified, the omission of which when comparing products may mean that the entrepreneur's action will be considered a “misleading omission”. These will include: information on the product comparison method.
This is how the government justifies the need for changes
As explained in the explanatory memorandum to the Act, under the current legal situation, a misleading act is one that in any way causes or may cause an average consumer to make a decision regarding a contract that he or she would not otherwise make. Such practices include, among others: spreading false information. The project also introduces two further specific behaviors of the entrepreneur, which may constitute misleading behavior and therefore be an unfair market practice.
The first are “environmental claims related to future ecological performance” made without “clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan”, regularly verified by an independent expert whose findings are made available to consumers.” An example of such a practice could be the entrepreneur's claims to achieve an environmental goal, e.g. climate neutrality, carbon dioxide emission reduction or similar, by a specific date, when he is unable to present an implementation plan such a goal. Therefore, the proclamation of slogans such as “our company will be climate neutral by 2030” – according to the amendment – will have to be supported by clear, objective, publicly available and verifiable obligations specified in a detailed and realistic implementation plan.
The second practice is “advertising benefits for consumers that are irrelevant and do not result from any feature of the product or the entrepreneur's activity.” According to the justification, this type of action may mislead consumers by suggesting that, for example, its products are more beneficial to the consumer user, the environment or society than other products or the activities of another entrepreneur of the same type. An example of this would be claiming that a particular brand of bottled water is gluten-free when the water is inherently gluten-free, meaning that all bottled water, regardless of seller, has this feature.
As indicated in the OSR, in the Act of May 30, 2014 on consumer rights, the Office of Competition and Consumer Protection wants to add definitions of the following concepts: commercial warranty of durability, manufacturer, repairability assessment expressed in scores and software updates. It also wants to expand the catalog of information that the seller should provide to the consumer before concluding the contract.
This catalog is to be supplemented with information on the entrepreneur's liability for compliance with the contract as provided for by law, information on the manufacturer's commercial warranty of durability, information on the minimum period for updating goods with digital elements, digital content and digital services, and information on the possibility and rules of repair – by indicating a point assessment of the possibility of repair.
According to the project, another change is to introduce an obligation for sellers – for off-premises and distance contracts – to provide consumers with information about ecological options for the delivery of goods – if the seller provides them.
The proposed amendment is intended to implement into the Polish legal order the provisions of the amendment to the EU directive introduced in 2024, which is to enable consumers to make informed decisions about purchasing products as part of sustainable consumption and thus contribute to the development of the EU circular economy and green economy – noted in the justification. (PAP)
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