The Competition and Markets Authority issues recommendations for a PCR test provider to improve its terms and conditions in order to comply with consumer law
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A company which provides PCR tests in the UK (the “Company”), has agreed to amend their terms and conditions in line with recommendations from the Competition and Markets Authority (“CMA”) to address consumer law concerns
Throughout the COVID-19 pandemic, the Government has imposed various travel restrictions which have stimulated a raft of activity in the field of COVID-19 testing. The emergence of a new variant has meant that as of 14 December 2021, people who are travelling to England (whether fully vaccinated or not) must show evidence of a negative COVID-19 test prior to entry. This means that rapid and effective COVID-19 testing is of critical importance for the travel industry, particularly for consumers wishing to go on holiday and travel.
However, both the Government and the CMA have been concerned that the practices of private test providers have not be compliant with UK consumer laws. In August 2021, the CMA wrote to various test providers, requiring them to review their operations for compliance. The CMA has also commented that, in the event of non-compliance, it may seek legal commitments from test providers to correct such business practices and in some cases, impose an obligation to issue consumer refunds.[1]
In respect of the Company, it agreed to change their terms and conditions in the following ways:
1. Clearer information to be provided to consumers (including on when the Company will provide PCR tests and results)
In general, the overriding principle for consumer contracts is to be clear and transparent in respect of the goods and/or services offered. More specifically, The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the “CCRs”) prescribe the information that must be made available to consumers in a clear and comprehensible manner before they enter distance contracts. Amongst other things, information must be provided regarding the main characteristics of the goods and services.
2. The terms must clearly notify consumers of their cancellation rights
The CCRs also govern the position on statutory consumer cancellation rights. For products, consumers have the right to cancel their contract for any reason from the moment of purchase, until 14 days after the date upon which they (or their carrier) receive the goods (a “cooling off period”)[2]. On this point, the CMA expressed that the Company must clarify the existence of such cooling off period.
3. Delete terms which suggest that consumers are not eligible for compensation if things go wrong
This is a key point to bear in mind when drafting consumer contracts. For example, if a term suggests that a consumer cannot a receive a refund where the trader could be at fault (which could be due to negligence, for example), such a term could be deemed unfair and therefore unenforceable. Similarly, any terms seeking to exclude or restrict a consumer’s statutory rights or remedies are “black listed” and are automatically unfair and unenforceable on consumers.
Key Take Away
The requirements set out by the CMA above apply equally to all consumer-facing terms and conditions in the UK. Businesses should ensure that their terms and conditions are reviewed for consumer compliance to order to reduce the risk of CMA enquiries and consumer complaints.
[2] NB: There are several exceptions to this principle.
